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OCCASIONAL  PAPERS 
AND  ADDRESSES 

OF 

AN  AMERICAN  LAWYER 


THE  MACMILLAN  COMPANY 

HEW  YORK  •   BOSTON  •   CHICAGO  •   DALLAS 
ATLANTA  •    SAN  FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON  •    BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ln>. 

TORONTO 


OCCASIONAL  PAPERS 
AND  ADDRESSES 

OF 

AN  AMERICAN  LAWYER 


BY 
HENRY  W.  TAFT 

OF  THE  NEW  YORK  BAR 


THE  MACMILLAN  COMPANY 
1920 

All  rights  reserved 


Copyright,  1920, 
By  THE  MACMILLAN  COMPANY 


Set  up  and  printed.     Published,  May,  1920 


LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

SANTA  BARBARA 


INTRODUCTION 

The  fugitive  papers  and  addresses  contained  in  this 
volume  are  the  by-product  of  a  busy  professional  life. 
They  were  prepared  during  the  last  decade;  and  yet 
the  march  of  events  has  been  so  rapid  that  little  more 
than  a  historic  interest  now  attaches  to  the  subjects 
they  deal  with.  Their  publication  in  a  book  was 
suggested  by  the  difficulty  I  have  encountered  in 
collecting  addresses  of  my  father  delivered  three- 
quarters  of  a  century  ago.  Aside  from  the  desire  to 
put  in  a  permanent  form  the  results  of  some  labor,  I 
have  some  hope  that  the  publication  of  the  contents 
of  this  volume  may  have  some  effect  upon  the  younger 
members  of  the  legal  profession  in  stimulating  them 
not  only  to  greater  effort  in  promoting  the  effective 
administration  of  justice,  but  also  to  a  more  active  per- 
formance of  the  duties  of  citizenship. 

The  pursuit  of  an  absorbing  profession  in  a  metro- 
politan city  leaves  little  time  for  the  indulgence  of 
tastes  in  the  fields  of  general  culture.  The  law  is 
such  a  jealous  mistress  that  she  does  not  suffer  gladly 
even  dilettante  ramblings  in  art  or  science  or  litera- 
ture. If  a  lawyer  does  disentangle  himself  from  the 
phylacteries  of  a  system  of  law  and  procedure  whose 
practice  frequently  tends  to  a  narrowness  of  vision, 
he  quite  naturally  turns  to  some  phase  of  public  af- 
fairs, and,  moreover,  as  I  have  pointed  out  in  these 
papers,  a  sense  of  public  duty  ought  to  press  him,  more 
than  those  engaged  in  other  pursuits,  in  that  direction. 
But  the  complexities  of  modern  existence  in  America 


vi  INTRODUCTION 

militate  against  actual  office-holding  by  a  lawyer.  An 
interruption  of  professional  activities  is  generally  det- 
rimental. There  are  so  many  competent  lawyers  that 
there  is  little  difficulty  in  replacing  those  who  forsake 
for  politics  their  practice  at  the  bar ;  and  a  lawyer  who 
yields  to  the  allurements  of  public  life  by  accepting 
office  generally  finds  that  the  political  prestige  he 
gains  is  of  little  practical  use  and  that  on  returning 
to  the  law  he  must  make  new  professional  connections. 
In  England  the  case  is  quite  different  and  leaders  of 
the  bar  may  continue  to  practice  their  profession  while 
they  engage  in  parliamentary  activities. 

To  participate  in  partisan  politics  in  a  great  city 
like  New  York,  and,  at  the  same  time,  build  up  and 
keep  together  a  law  practice,  is  most  difficult.  It  is 
surprising  how  few  men  of  real  talent  have  performed 
the  double  role  of  lawyer  and  politician.  This  always 
becomes  manifest  when  the  state  or  federal  appointing 
power  seeks  to  fill  vacancies  on  the  bench.  Lawyers 
of  eminent  qualifications  for  such  positions  are  numer- 
ous, but  to  find  those  who  are  politically  anything  more 
than  ciphers  is  most  difficult.  And  yet  it  ought  to  be 
possible  to  maintain  a  first-rate  position  at  the  bar 
and  at  the  same  time  acquire  an  influence  in  politics  of 
sufficient  importance  to  enable  a  lawyer  to  contribute 
something  to  the  elevation  of  the  tone  of  our  public 
life.  By  training,  environment  and  aptitude,  lawyers 
are  usually  well  equipped  to  engage  in  political  activi- 
ties, and  if  circumstances  do  not  permit  them  to  hold 
office,  at  least  they  may  and  ought  to  devote  a  substan- 
tial part  of  their  time  to  the  discharge  of  the  duties 
and  responsibilities  of  citizenship.  Conspicuous  ex- 
amples show  that  this  can  be  done  without  detriment 
to  professional  success.  The  career  of  Mr.  Elihu  Root 
is  a  striking  illustration.     No  member  of  our  bar  de- 


INTRODUCTION  vii 

voted  himself  more  assiduously  to  the  practice  of  his 
profession  until  after  he  became  fifty-five  years  of 
age,  when  he  entered  Mr.  McKinley's  Cabinet.  With 
the  exception  of  a  brief  period  when  he  was  United 
States  Attorney  for  the  Southern  District  of  New 
York,  he  had  for  many  years,  without  holding  office 
of  any  kind,  kept  so  closely  in  touch  with  political  and 
party  affairs  as  to  be  a  factor  whom  leaders  of  party 
organizations  could  not  afford  to  ignore. 

I  am  led  by  this  comment  on  Mr.  Root's  career  to 
advert  to  the  efforts  of  lawyers  from  other  parts  of 
the  country  who  have  achieved  national  fame  in  pub- 
lic life  and  have  presumed  upon  the  reputation  thus 
acquired  to  enter  the  ranks  of  the  working  bar  of  New 
York  City.  A  few  have  succeeded, — if  success  con- 
sists in  making  adequate  incomes  through  connections 
formed  on  account  of  their  prestige;  most,  however, 
have  failed,  and  to  their  bitter  disappointment.  That 
they  should  attain  at  the  numerous  and  competent  bar 
of  a  great  city  a  position  commensurate  with  a  repute 
acquired  in  other  fields,  has  been  generally  shown  to 
be  impossible,  and  when  the  glamour  attaching  to  pub- 
lic office  has — as  it  generally  has — become  dimmed,  the 
exotic  lawyer  and  the  retired  statesman  either  must 
content  himself  with  an  obscurity  that  irks,  or  return 
to  the  field  of  his  earlier  activities. 

In  an  address  to  the  students  of  the  Harvard  Law 
School  printed  in  this  volume,  I  attempted  to  point 
out  some  of  the  conditions  under  which  the  modern 
practice  of  the  law  must  be  conducted.  In  thirty-eight 
vears  of  observation  I  have  seen  the  most  radical 
changes.  In  my  early  days  at  the  bar  the  leaders  were 
great  advocates.  Indeed,  forensic  power  and  its  ha- 
bitual exercise  in  the  trial  of  great  causes  of  all  kinds, 
combined  with  force  and  elevation  of  character,  were 


viii  INTRODUCTION 

the  qualities  esteemed  to  be  necessary  for  leadership. 
From  its  foundation  in  1870,  the  presidency  of  the 
Association  of  the  Bar  of  the  City  of  New  York  was 
the  blue  ribbon  of  professional  life,  and  for  more  than 
thirty  years  it  was  awarded  to  men  eminent  as  advo- 
cates. Thus  we  had  a  long  line  of  men  of  the  highest 
distinction  such  as  William  M.  Evarts,  Stephen  P. 
Nash,  Francis  N.  Bangs,  James  C.  Carter,  William 
Allen  Butler,  Joseph  H.  Choate,  Frederic  R.  Coudert, 
Wheeler  H.  Peckham,  Joseph  Larocque,  John  E.  Par- 
sons, William  G.  Choate  and  Elihu  Root.  In  later 
years,  however,  we  find  the  Presidents  of  the  Bar 
Association  distinguished  not  so  much  for  their  foren- 
sic talent  or  their  frequent  appearance  as  advocates, 
as  for  the  esteem  in  which  they  were  held  for  qualities 
of  leadership  based  upon  personal  character,  general 
legal  attainments,  and  occasional  appearances  in  the 
trial  of  the  great  litigations  such  as  have  become  in  the 
last  generation  more  frequent  in  settling  the  relations 
between  corporate  interests  and  the  agencies  of  gov- 
ernment. It  may  be  said  with  certitude  that  conspicu- 
ous talent  in  advocacy,  prestige  on  account  of  reputed 
ability  in  obtaining  results  in  court,  and  vogue  among 
the  lay  public,  have  ceased  to  play  such  an  important 
part  in  determining  leadership  at  the  bar  as  they  did 
forty  years  ago. 

It  is  perhaps  due  to  the  tradition  surviving  from  the 
old  order  that  there  commonly  prevails  among  the  lay 
public  an  idea  that  a  lawyer's  experience  cultivates  an 
aptitude  for  public  speaking  on  general  topics.  But, 
while  generalization  where  so  many  exceptions  must 
be  made  is  dangerous,  I  have  observed  that  the  pur- 
suit of  advocacy  in  the  courts,  particularly  under  mod- 
ern conditions,  while  it  leads  to  compression  and 
lucidity  of  statement,  tends  to  the  impairment  rather 


INTRODUCTION  ix 

than  the  cultivation  of  the  art  of  oratory.  In  jury- 
trials  eloquence  is  frequently  an  effective  weapon,  but 
more  and  more  in  this  intensely  practical  age  un- 
adorned statements  of  the  facts  and  unemotional  stim- 
ulation of  the  reason  have  taken  the  place  of  rhetorical 
flights  and  emotional  appeals.  The  modern  lawyer  is 
continually  making  points,  and  lucid  exposition  and 
persuasive  logic  have  more  effect  than  flights  of  fancy, 
rhetorical  decoration,  and  even  humor  and  wit.  The 
modern  judge  has  little  time  to  listen  to  anything 
except  a  naked  discussion  of  the  facts  and  the  law,  and 
even  jurymen  do  not  now  tolerate  such  extended  ora- 
torical efforts  as  those  we  read  of  in  the  early  history 
of  the  profession. 

On  an  occasion  where  there  is  not  to  be  an  orderly 
treatment  of  some  serious  subject  (I  have  included  in 
this  collection  several  addresses  on  such  occasions 
which  I  fear  may  seem  rather  sporadic, — where,  I 
say,  speakers  may  select  their  own  subjects,  or  con- 
fine themselves  to  none,  grace  in  delivery  and  expres- 
sion, lightness  of  touch,  play  of  the  imagination  and 
humor  or  pathos,  will  make  an  appeal,  and  a  modern 
lawyer  does  not  find  himself  qualified  by  habit  for  an 
effective  performance.  And  while  brilliant  speakers 
there  have  been  among  the  members  of  the  bar,  such 
men,  for  instance,  as  Mr.  Evarts,  Mr.  Choate,  Mr. 
Hedges  and  Mr.  Beck,  they  have  possessed  the  spark 
of  oratory  not  because  they  were  lawyers  but  in  spite 
of  that  fact. 

I  have  to  some  extent  touched  upon  the  cause  of  the 
changes  which  have  thus  affected  the  lawyer.  At  this 
point  it  is  sufficient  to  indicate  that  it  is  undoubtedly 
in  large  part  due  to  the  evolution  (I  might  almost  say 
revolution),  which  has  been  in  progress  during  the  last 
generation  in  certain  phases  of  our  national  life.     The 


x  INTRODUCTION 

most  important  contributions  of  the  legal  profession 
to  the  recent  development  of  the  economic,  industrial 
and  political  life  of  the  country  have  been  those  which 
have  been  constructive ;  that  is,  those  which  have  aided 
in  putting  into  practical  operation  within  the  law, 
great  conceptions  of  the  modern  leaders  of  finance  and 
industry.  However  necessary  and  however  inevitable 
litigations  commanding  the  services  of  the  ablest  law- 
yers may  still  be,  most  controversies  in  court  do  not 
directly  contribute  much  to  human  progress.  In  the 
intensely  practical  transformation  this  country  has  ex- 
perienced in  the  last  generation,  litigation  has  come  to 
be  frequently  viewed  by  the  public,  especially  that  part 
of  it  which  is  engaged  in  great  business  enterprises,  as 
an  obstacle  to  enterprise.  It  is  no  doubt  due  to  this 
fact  that  leaders  of  the  bar  have,  much  less  than  for- 
merly, sought  employment  in  active  litigation  and  have 
confined  themselves,  where  they  do  appear  as  advo- 
cates, to  the  great  causes  which  are  incident  to  the 
enforcement  of  recent  statutory  enactments  relating 
to  our  economic  and  commercial  development,  such,  for 
instance,  as  the  Anti-Trust  Law. 

But  it  is  not  alone  the  practical  effect  of  such  con- 
ditions as  these  that  has  affected  the  legal  profes- 
sion in  particular  and  the  administration  of  justice 
in  general.  The  public  mind  during  the  last  genera- 
tion has  been  intensively  occupied  with  efforts  to  solve 
pressing  problems  of  sociology.  This  condition  pro- 
duced one  of  the  most  resolute  assaults  in  our  history 
on  our  judicial  system.  There  was  little  more  of  an 
armament  for  the  attack  than  an  appealing  phrase. 
" Social  Justice"  which  had  no  more  practical  value 
as  a  basis  for  an  ordered  system  of  law  than  the  ele- 
vated sentiments  of  the  ephemeral  constitution  of  the 
French  Revolutionists,  threatened  to  dislodge  some  of 


INTRODUCTION  xi 

the  keystones  in  parts  of  the  structure  of  our  judicial 
system  which,  from  the  standpoint  of  both  the  pe- 
culiar character  of  our  polity  and  its  historical  de- 
velopment, were  characteristically  American.  But 
such  a  revolt  was  not  new  in  our  history.  Indeed,  it 
began  early  in  the  history  of  our  government.  Essen- 
tially it  was  a  modern  phase  of  a  tendency  in  all  gov- 
ernments based  on  universal  suffrage  to  become  pe- 
riodically impatient  of  restraints  imposed  by  funda- 
mental law.  If  its  avowed  purpose  to  destroy  the  in- 
dependence of  the  judiciary  had  succeeded,  it  is  not 
probable  that  our  federal  government  would  long 
have  endured,  nor  would  the  system  of  common  law 
administered  in  the  state  and  federal  courts  long  have 
continued  to  protect  the  rights  of  the  individual  citi- 
zen. 

The  recall  of  judges  and  the  recall  of  decisions  could 
never  have  been  made  to  occupy  the  public  mind,  or 
to  become  a  menace,  if  it  had  not  been  advocated  by 
one  of  the  most  extraordinary  politicians  and  states- 
men of  his  day.  Neither  the  Republican  nor  the 
Democratic  party  would  have  had  the  hardihood  to 
adopt  as  a  basis  for  a  political  contest  such  a  radical 
political  doctrine.  Jefferson's  attacks  were  chiefly  di- 
rected at  the  power  of  the  federal  judiciary.  It  is 
doubtful  whether  even  he  would  have  taken  the  po- 
litical risk  of  a  campaign  upon  a  platform  seeking  to 
destroy  the  judiciary  department  as  an  independent 
organ  of  both  the  state  and  the  federal  government, 
by  subjecting  judicial  decisions  to  the  test  of  a  refer- 
endum. 

Whenever  attacks  upon  the  courts  have  been  made 
in  this  country,  they  have  resulted  from  a  sort  of 
straining  against  the  constitutional  fetters  whose  pur- 
pose has  been  to  prevent  inter-departmental  usurpa- 


xii  INTRODUCTION 

tions  or  to  limit  the  sovereignty  of  the  states ;  or  they 
have  been  a  mere  inarticulate  manifestation,  common, 
as  I  have  said,  in  democracies,  of  impatience  at  re- 
strictions imposed  upon  the  political  action  of  the 
people. 

Those  who  seek  to  affect  the  independent  character 
of  the  judiciary  branch  of  the  government  have  not 
generally  realized  that  their  attack  is  upon  the  fea- 
ture of  our  federated  system  which  contributes  more 
than  any  other  to  its  stability,  and  without  which  it 
probably  would  not  have  survived  the  first  century  of 
its  existence.  In  the  case  of  Mr.  Roosevelt,  if  the 
problem  had  been  merely  a  juridical  one,  involving 
general  principles  of  jurisprudence,  it  would  not  have 
been  surprising  if  he  had  failed  fully  to  grasp  its  im- 
portance, for  his  education  as  a  lawyer  was  not  much 
more  than  superficial,  and  his  experience  and  tempera- 
ment led  him  to  view  public  questions  from  a  view- 
point quite  different  from  that  of  a  trained  lawyer. 
But  the  weakening  of  the  judiciary  department  as  an 
independent  organ  of  government  would  affect  the  sys- 
tem of  checks  and  balances  by  which  the  framers  of 
the  Constitution  sought  to  establish  an  equilibrium 
among  the  three  departments  of  the  Federal  Govern- 
ment, and  between  the  enumerated  powers  of  the  cen- 
tral government  on  the  one  hand  and  the  reserved  pow- 
ers of  the  several  states  on  the  other;  and  a  correct 
forecast  of  its  probable  effect  upon  our  institutions 
required  examination  of  and  reflection  upon  the  history 
of  the  proceedings  of  the  Constitutional  Convention  of 
1787,  the  state  conventions  which  ratified  the  Consti- 
tution, the  writings  of  Hamilton,  Madison  and  Jay, 
and  the  opinions  of  Marshall.  Both  because  of  Mr. 
Roosevelt's  position  as  an  American  historian  and  a 
man  of  letters,  and  because  he  had  been  for  years  a 


INTRODUCTION  xiii 

practical  statesman  observing  the  workings  of  the  fed- 
eral system,  one  would  have  expected  that  he  would 
give  decisive  weight  to  historical  considerations  and 
would  realize  the  vital  importance  of  maintaining  the 
delicate  inter-departmental  balance  in  the  federal  sys- 
tem, and  of  preventing  the  co-existing  but  reciprocally 
exclusive  sovereignties  of  the  central  government  and 
the  states  from  getting  into  a  condition  of  unstable 
equilibrium. 

But  while  Mr.  Roosevelt  was  a  man  of  the  highest 
impulses,  he  did  not  always,  and  especially  when  he 
was  moved  by  a  sense  of  some  immediate  injustice, 
take  account  of  consequences  or  permit  the  intrusion 
of  cooling  reflection  based  upon  the  teachings  of  expe- 
rience; and,  as  I  have  intimated,  at  no  time  in  his 
career  did  he  have  much  sympathy  with  anything  that 
was  legalistic.  He  continued  to  the  end  of  his  life  to 
view  slightingly  what  he  characterized  as  "law  hon- 
esty." 

I  remember  when  Mr.  Roosevelt  and  I  were  studying 
law  at  the  Columbia  Law  School  in  1881,  Professor 
Theodore  W.  Dwight  on  one  occasion  announced  with 
didactic  emphasis,  some  familiar  and  long-established 
proposition  of  law.  A  tow-headed  young  man  arose 
in  the  back  of  a  crowded  class-room  and  with  a  trace 
of  pugnacity  said,  "Professor  Dwight,  is  that  the 
law?"  "It  is,  sir,"  came  back  with  the  verbal  rapid 
fire  of  the  famous  Professor,  so  familiar  to  his  stu- 
dents ;  to  which  Mr.  Roosevelt  had  the  last  word  in  an 
impulsive  staccato  "Well,  it  ought  not  to  be."  When, 
more  than  a  quarter  of  a  century  later  the  idea  of 
social  justice  became  a  favorite  topic  of  a  school  of 
economists,  a  similar  impulse  seized  upon  Mr.  Roose- 
velt's imagination,  and  with  characteristic  impetu- 
osity he  sought  to  better  the  condition  of  the  people 


xiv  INTRODUCTION 

by  an  emasculation  of  the  judiciary  system,  without 
giving  due  weight  to  the  broader  question  of  its  effect 
upon  the  entire  governmental  structure.  Further- 
more, its  advocacy  had  certain  alluring  political  advan- 
tages. 

But  these  facts  do  not  completely  account  for  the 
advocacy  by  Mr.  Roosevelt  of  the  recall.  Strange  as 
it  may  seem,  he  sympathized  with  the  fear,  somewhere 
expressed  by  Mr.  Jefferson,  that  the  system  of  govern- 
ment established  by  our  Constitution  would,  like  an 
unwound  clock,  run  down.  Both  of  these  statesmen 
thought  that  the  checks  by  which  the  powers  of  the 
three  departments  of  government  were  to  be  sustained 
in  even  balance  might  result  in  the  paralysis  of  all 
effective  governmental  power.  While  Mr.  Roosevelt 
generally  had  little  sympathy  with  Mr.  Jefferson  in  his 
political  philosophy,  he  did  believe  that  the  power  of 
the  executive  ought  to  be  co-extensive  with  any  emer- 
gency calling  for  its  exercise.  In  other  words,  while 
he  would  perhaps  not  have  formulated  the  dogma 
quite  so  plainly,  he  nevertheless  in  practice  was 
strongly  inclined  to  act  upon  the  theory  that  the  pow- 
ers of  the  executive  and  the  administrative  branches 
of  government,  were  to  be  exercised  at  the  discretion 
of  the  executive  to  any  extent  necessary  for  emergent 
purposes,  except  so  far  as  they  were  expressly  limited 
by  constitutional  or  statutory  provision.  He  believed 
that  by  implication  the  executive  was  vested  with 
plenary  power  to  conduct  all  governmental  operations, 
except  so  far  as  such  power  was  limited  by  express 
grant  to  the  legislative  branch. 

Now,  a  statesman  entertaining  such  views  as  to  the 
character  of  our  governmental  structure  could  hardly 
be  expected  to  be  deeply  impressed  with  the  necessity 
of  maintaining  the  balance  among  the  three  depart- 


INTRODUCTION  xv 

ments  of  government.  Temperamentally,  if  not  by 
conviction,  Mr.  Roosevelt  believed  (and  there  is  a 
large  measure  of  truth  in  this  view),  that  the  legisla- 
tive department,  consisting  of  two  houses,  frequently 
of  opposite  political  parties,  and  also  with  equal  fre- 
quency failing  to  cooperate  with  the  executive,  was 
not  an  efficient  organ  of  government.  His  vigor  and 
extraordinary  determination  to  accomplish  results 
which  he  believed  would  be  for  the  good  of  the  people, 
led  him,  therefore,  to  the  belief  that  only  by  the  expan- 
sion of  the  administrative  power  could  the  government 
perform  its  proper  function;  and  it  is  not  altogether 
surprising  that  he  should  have  failed,  under  the  influ- 
ence of  the  desire  to  improve  the  condition  of  the  less 
fortunate  in  life,  to  yield  to  the  temptation  of  advocat- 
ing a  diminution  of  the  powers  of  the  judiciary  de- 
partment, even  though  it  had  only  a  sort  of  veto  power 
and  could  perform  no  affirmative  function  of  govern- 
ment. In  the  last  years  of  his  life  reflection  and  the 
recession  of  the  progressive  wave,  seem  to  have  led 
him  to  abandon  the  views  which  he  had  so  vigorously 
pressed;  at  least  he  ceased  to  make  them  a  guide  for 
his  political  conduct. 

I  did  not  intend  to  be  led  into  an  estimate  of  Mr. 
Roosevelt's  character  and  public  career.  But  disap- 
proval of  his  course  on  the  recall  ought  not  to  permit 
us  to  forget  the  services  of  permanent  value  which  he 
rendered  to  his  country.  I  would  not  attempt  to  sum 
these  all  up ;  the  task  would  be  too  long  for  this  intro- 
duction. I  will  content  myself  by  adverting  to  two 
things  which  he  contributed  to  our  national  life  and 
which  were  of  inestimable  value. 

The  first  of  these  was  the  interest  in  public  affairs 
which  he  was,  through  his  boundless  enthusiasm,  able 
to  arouse  among  multitudes  of  his  countrymen,  who 


xvi  INTRODUCTION 

through  lethargy  or  indifference,  had  failed  to  pay  the 
price  which  the  successful  maintenance  of  a  democratic 
form  of  government  inexorably  demands ;  that  is,  some 
affirmative  effort  and  some  sacrifice  of  personal  in- 
terest and  comfort,  for  the  benefit  of  the  general  wel- 
fare. 

Of  the  second  great  accomplishment  of  Mr.  Roose- 
velt there  is  evidence  in  concrete  results.  I  refer  to 
what  he  did,  not  only  in  compelling  great  business  com- 
binations to  obey  the  law,  but  in  the  far  more  subtle 
and  difficult  task  of  elevating  the  ethical  standards 
which  great  business  organizations,  particularly  those 
in  corporate  form,  have  adopted  as  a  guide  in  the  con- 
duct of  their  affairs.  Mr.  Roosevelt's  distinction  and 
his  greatest  value  to  his  country  lay  in  his  ability  as 
a  crusader  against  dishonest,  selfish  and  unpatriotic 
methods  of  doing  business,  which  threatened  at  one 
time  by  their  excesses  to  convert  the  body  politic  into 
what  would  have  been  measurably  near  a  plutocracy. 
Largely  through  his  leadership,  the  danger  of  such  a 
result  was  permanently  removed  and  principles  of  jus- 
tice and  honesty  and  moderation  in  business  methods 
were  firmly  indoctrinated.  I  have  recently  been  read- 
ing some  of  the  correspondence  of  von  Bernstorff  with 
the  German  Foreign  Office  before  we  entered  the  war. 
The  German  Ambassador  had  had  ample  opportunities 
for  many  years  to  observe  the  movement  of  public  af- 
fairs in  this  country.  We  might  be  prepared  to  have 
the  ruling  caste  in  Germany,  while  enjoying  the  profits 
of  their  cartels  and  other  forms  of  monopolies,  loftily 
prate  about  the  indifference  of  the  American  people  to 
anything  but  money-making,  but  it  is  amazing  that  the 
German  Ambassador,  witnessing  in  this  country,  as  he 
did,  the  most  extraordinary  revolution  of  modern  times 
in  business  methods  and  morals,  brought  about  largely 


INTRODUCTION  xvii 

through  the  leadership  of  Mr.  Roosevelt,  and  unques- 
tionably supported  by  the  vast  majority  of  the  Ameri- 
can people,  should  with  seeming  honesty,  entertain  the 
view  that  the  Americans  cared  for  nothing  but  money- 
getting. 

Some  of  the  subjects  dealt  with  in  this  volume  have 
aroused  more  or  less  bitter  controversy.  If  any  value 
attaches  to  my  treatment  of  them  it  is  because  I  wrote 
before  discussion  had  progressed  far,  and  in  a  more 
or  less  impartial  way  attempted  to  inform  the  public 
concerning  subjects  which  at  the  time  I  had,  perhaps, 
studied  more  than  most  people.  This  is  particularly 
so  of  the  papers  relating  to  the  League  of  Nations,  the 
Treaty  in  the  Senate,  the  Railroads  and  Bolshevism. 
The  paper  on  State  Control  of  Navigable  Waters  was 
prepared  as  a  result  of  a  litigation  relating  to  a  sub- 
ject of  vast  importance  to  the  people  of  the  United 
States,  concerning  which,  however,  the  public  at  large 
is  very  inadequately  informed.  This  chapter  will 
naturally  have  an  interest  largely  for  professional 
students  of  the  subject.  At  some  time,  however, 
the  people  of  the  country  will  perceive  that  the  im- 
provement of  its  waterways  and  waterpowers  has 
a  most  vital  connection  with  their  personal  comfort 
and  their  business  interests,  and  they  will  insist  that 
the  relation  between  public  control  or  supervision  and 
business  enterprise  seeking  to  improve  the  natural  re- 
sources of  the  country,  shall  be  adjusted  in  some  work- 
able fashion. 

I  cannot  flatter  myself  that  my  views  as  to  the  solu- 
tion of  the  Railroad  problem  confronting  this  country 
after  the  war  have  had  much  influence.  But  that  may 
with  equal  truth  be  said  of  the  numerous  plans  pro- 
posed to  Congress  as  a  basis  of  legislation,  since  the 
views  of  no  single  individual  or  group  of  individuals, 


xviii  INTRODUCTION 

have  alone  contributed  much  to  the  solution  of  the 
difficult  and  complicated  economic  and  political  ques- 
tion which  was  involved. 

There  are  a  number  of  reforms  of  our  law  which 
ought  to  be  made  if  its  administration  is  to  be  kept 
abreast  of  the  needs  of  modern  civilization.     Largely 
through  inertia  we  permit  a  system  acknowledged  to 
be  defective  in  many  respects  to  remain  unreformed. 
Reiteration  of  this  fact  is  necessary  if  an  impression 
upon  the  public  mind  is  to  be  made.    It  is  amazing, 
for  instance,  that  the  public  who  witness  in  our  courts 
the  application  every  day  of  some  of  our  artificial,  if 
not  ridiculous  rules  of  evidence,  do  not  rise  en  masse 
and  insist  that  they  be  changed.    And  yet  they  remain 
indifferent.     We  are  sadly  in  need  of  a  modern  Jeremy 
Bentham,  who,  even  if  he  make  use  of  exaggeration 
and  ridicule,  would  arouse  the  public  to  a  realization 
of  some  of  the  practices  now  prevailing,  by  which  the 
pursuit  of  truth  is  embarrassed.     This  and  other  re- 
forms are  suggested  in  my  annual  address  to  the  New 
York  State  Bar  Association,  which  was  designed  to 
arouse  the  American  lawyer  to  a  realization  of  the  re- 
sponsibility resting  upon  him  on  account  of  the  public 
function  which  members  of  the  bar  must  perform  if 
they  would  be  good  American  citizens.    At  the  annual 
dinner   of   the    Association   I   discussed   freedom   of 
speech  in  this  country  and  the  danger  confronting  us 
that  minorities,  and  not  majorities,  should  rule. 

The  paper  on  Aspects  of  Bolshevism  and  American- 
ism was  the  result  of  a  summer's  study  of  such  orig- 
inal material  as  could  be  obtained  from  all  sources  con- 
cerning the  Russian  situation,  much  of  which  consisted 
of  inflammatory  books  and  literature  purchased  at  the 
Rand  School.  Only  from  such  sources  did  it  seem  to 
be  possible  to  become  possessed  of  the  Russian  situa- 


INTRODUCTION  xix 

tion  from  the  standpoint  of  the  Marxian  Communists, 
who  now  go  under  the  name  of  Bolshevists. 

The  paper  on  the  Tobacco  Trust  decisions  resulted 
from  the  trial  and  finally  the  argument  in  the  Supreme 
Court  of  certain  questions  under  the  Fourth  and  Fifth 
Amendments  of  the  Federal  Constitution  concerning 
unlawful  searches  and  the  right  of  an  individual  to 
be  free  from  being  compelled  to  incriminate  himself. 
The  rule  laid  down  by  the  Supreme  Court  in  the  Hale 
and  McAlister  cases  as  a  result  of  this  litigation,  en- 
abled the  government  to  obtain  evidence  upon  which 
most  of  the  prosecutions  under  the  Anti-Trust  Law 
were  ultimately  commenced  and  carried  to  completion. 

I  have  not  thought  that  any  publication  that  I  might 
make  would  be  complete  without  some  adequate  ref- 
erence to  the  activities  of  the  bar  of  this  country  in 
contributing  to  the  enforcement  of  the  Selective  Serv- 
ice Law  during  the  war.  Credit  has  been  accorded  to 
the  lawyers  of  the  country  in  formal  communications 
from  government  officials.  But  I  do  not  believe  that 
the  members  of  the  legal  profession  of  the  entire  coun- 
try have  received  their  due  meed  of  praise  for  the  ex- 
tent and  value  of  the  service  they  performed  in  the 
creation  of  our  army  of  four  millions  of  men,  without 
unnecessary  impairment  of  the  industrial  efficiency  of 
the  country,  or  undue  disturbance  of  social  and  family 
life.  That  task  was  of  infinite  difficulty.  No  other 
nation  of  the  world  was  ever  confronted  with  such  a 
complicated  undertaking.  The  credit  due  to  General 
Crowder  and  the  office  of  the  Provost  Marshal  General 
for  the  genius  which  was  displayed  in  conceiving  the 
plan  of  the  Selective  Service  Law  has  never  been  suffi- 
ciently accentuated.  The  manner  in  which  the  law  was 
executed  was  no  less  remarkable.  And  it  is  equally 
certain  that  unless  the  services  of  the  entire  American 


xx  INTRODUCTION 

bar  had  been  placed  at  the  disposition  of  the  Govern- 
ment in  advising  registrants  concerning  their  rights 
and  obligations,  and  in  aiding  them  in  the  preparation 
of  the  complicated  questionnaires,  through  which  the 
system  was  put  into  effect,  confusion  would  have  ruled 
from  the  outset.  Both  the  President  and  the  Provost 
Marshal  General  early  perceived  that  an  opportunity 
was  afforded  to  the  legal  profession  as  a  class  to  ren- 
der a  highly  patriotic  service,  and  they  immediately 
appealed  to  them  to  put  themselves  at  the  disposition 
of  the  governmental  officers.  This  was  done  promptly 
and  effectively ;  and  it  is  no  more  than  due  to  the  pro- 
fession at  large  that  publicity  should  be  again  given  to 
the  fact. 

The  chapter  on  the  League  of  Nations,  as  well  as  the 
contributions  to  "The  Covenanter"  printed  as  a  part 
of  this  volume,  were  the  result  of  an  early  study  of 
the  Covenant  of  the  League  before  the  discussion  be- 
came affected  by  the  extraordinary  bitterness  with 
which  both  advocates  and  opponents  of  the  League 
ultimately  attempted  to  buttress  their  contentions. 
Vigor  of  assertion  came  to  assume  more  importance  to 
some  speakers  than  the  soundness  of  their  reasons. 
Arguments  of  the  most  tenuous  character  were  put 
forth  with  ill-timed  vigor  and  gross  exaggeration.  De- 
baters did  not  consider  whether  their  objections  would 
ever  have  any  practical  importance.  The  controversy 
had  many  points  of  similarity  to  the  discussion  which 
raged  in  the  state  conventions  which  considered  our 
Federal  Constitution  in  1788  and  1789. 

Objections  to  our  Constitution,  asserted  by  its  die- 
hard opponents  to  be  of  the  most  vital  importance, 
were  based  upon  forebodings  as  to  perils  then  thought 
to  be  certain  to  ensue;  but  most  of  them  have  never 
since  had  any  importance  except  to  illustrate  how  the 


INTRODUCTION  xxi 

bitterness  of  controversy  may  stimulate  the  play  of 
the  imagination.  In  the  debate  concerning  the  League 
of  Nations,  most  fantastic  arguments  and  meticulous 
criticisms  have  assumed  for  the  moment  substantial 
importance,  and  responsible  statesmen  have  not  hesi- 
tated to  indulge  in  the  most  extravagant  flights  of 
fancy,  such,  for  instance,  as  that  the  League  of  Na- 
tions will  result  in  the  domination  of  the  world  by  the 
colored  races,  or  by  the  Pope !  It  is  indeed  unfortu- 
nate that  the  adoption  of  a  measure  of  such  vast  im- 
portance to  the  entire  world,  should  have  been  im- 
perilled by  a  degeneration  into  a  bitter  argument  upon 
what  is  largely  a  matter  of  form ;  and  the  fault  in  this 
respect  has  not  been  by  any  means  on  one  side  alone. 
I  cannot,  of  course,  attempt  here  to  discuss  the  merits 
of  the  controversy,  but  I  am  tempted  to  advert  to  a 
single  point.  I  have  always  thought  that  the  discus- 
sion concerning  Article  X  had  assumed  an  importance 
far  beyond  what  it  deserved.  In  view  of  the  other 
articles  of  the  Covenant,  that  Article  is  largely  a  pro- 
vision for  an  emergency,  and  a  remote  one.  It  is 
hardly  conceivable,  or  to  put  it  less  strongly,  only  in  a 
very  rare  case  would  it  happen,  that  there  would  be 
an  external  aggression  by  one  country  upon  the  terri- 
torial integrity  or  political  independence  of  another, 
without  some  antecedent  inciting  cause.  Now,  if  such 
cause  existed  as  a  matter  in  dispute,  it  must  be  pre- 
sumed that  under  the  machinery  provided  for  in  Ar- 
ticles XII,  XIII,  XV  and  XVI,  it  would  have  been 
submitted  to  arbitration  or  mediation,  hostilities  being 
withheld  in  the  meantime,  and  that  for  a  failure  to 
comply  with  the  provisions  of  those  articles  the  eco- 
nomic boycott  provided  for  in  Article  XVI  would  have 
gone  into  effect.  Only,  therefore,  in  the  case  of  a 
nation  failing  to  observe  the  covenants  contained  in  the 


xxii  INTRODUCTION 

Articles  referred  to,  and  thus  giving  to  all  the  other 
member  nations  under  the  provisions  of  Article  XVI 
a  cause  of  war,  can  it  be  supposed  that  the  provision 
of  Article  X  would  come  into  operation.  That  Ar- 
ticle is  necessary  for  such  an  exigent  situation,  but 
that  such  a  situation  will  ever  arise  is  extremely  im- 
probable. And  yet,  about  the  provisions  of  that  Ar- 
ticle more  than  of  any  other  has  the  controversy  raged. 

I  have  included  in  this  collection  an  appreciation  of 
John  L.  Cadwalader, — a  figure  of  distinction  in  the  cul- 
tural life  of  New  York  City.  He  possessed  a  unique 
personality.  He  was  a  gentleman  of  the  old  school, 
and  yet  in  his  keen  perception  of  recent  developments, 
social,  political  and  professional,  he  was  a  modern  of 
moderns.  If  there  be  American  aristocrats  he  was 
one  by  birth  and  association,  but  he  had  an  ill-con- 
cealed contempt  for  those  who  claimed  social  or  other 
distinction  except  for  worth. 

In  epistolary  literature  Mr.  Cadwalader  might  have 
rivaled  Horace  Walpole,  with  less  vitriol;  in  public 
life  he  would  have  been  a  great  diplomatist,  looking 
at  world  affairs  through  an  international  medium  to 
which  wide  travel  and  his  experience  early  in  life  as 
Assistant  Secretary  of  State  accustomed  him.  He 
loved  art  in  its  various  forms  and  satisfied  his  craving 
by  surrounding  himself  with  beautiful  things  which  by 
his  will  he  gave  to  the  public.  But  little  that  he  wrote 
was  preserved  and  he  hated  the  histrionic  display  of 
politics;  he  was  content  to  forego  the  fame  which  his 
talents  and  his  character  would  have  assured  him. 

In  conversation  Mr.  Cadwalader  had  a  pungent  wit 
and  a  delicate  vein  of  satire,  directed  frequently  at 
manners  in  modern  society  offending  against  good 
taste  or  sound  morals.  He  was  eminent  in  his  pro- 
fession.    In  subtlety  in  giving  point  to  legal  docu- 


INTRODUCTION  xxiii 

ments  he  exceeded  any  lawyer  of  my  acquaintance. 
He  was  a  distinguished  figure  in  the  city  of  his  resi- 
dence, and  I  am  glad  to  give  permanent  form  to  an 
address  which  was  delivered  upon  the  occasion  of  the 
presentation  to  Mr.  Cadwalader's  native  city  of  Tren- 
ton of  a  building  for  the  public  library  for  which  he 
had  made  provision  before  his  death. 

H.  W.  T. 


CONTENTS 

PAGE 

Introduction v 

I.    Address  to  the  Harvard  Law  School  Students,  De- 
livered in  1908 3 

II.  Some  Responsibilities  op  the  American  Lawyer. 
President's  Address,  Delivered  Before  the  New 
York  State  Bar  Association,  at  Its  Annual  Meet- 
ing, Held  in  New  York  City,  January  16-17,  1920    23 

III.  The  Bar  in  the  War— Its  War  Committees  and  Its 

Participation  in  the  Enforcement  of  the  Selec- 
tive Service  Law  and  Regulations.  An  Address 
Delivered  at  the  Annual  Meeting  of  the  New 
York  State  Bar  Association  Held  in  New  York 
City,  January  11-12,  1918,  by  Mr.  Taft,  Chairman 
of  the  War  Committee  of  the  Bar  of  the  City  of 
New  York 53 

IV.  Report  of  the  War  Committee.     Report  Presented 

by  Mr.  Taft,  as  Chairman  of  the  War  Committee 
of  the  Association,  at  the  Annual  Meeting  of 
the  New  York  State  Bar  Association  Held  in 
New  York  City,  January  17-18,  1919     ....     71 

V.  Aspects  of  Bolshevism  and  Americanism.  Address 
to  the  League  for  Political  Education,  Carnegie 
Hall,  New  York  City,  December  6,  1919     .     .     • 

VI.  The  League  of  Nations.  Reprinted  from  a  Series 
of  Articles  Published  in  the  New  York  Times  of 
March  24-25,  and  April  4,  1919 123 

VII.  Sovereignty,  Constitutionality  and  the  Monroe 
Doctrine.  Letters  of  Mr.  Henry  W.  Taft.  Re- 
printed from  "The  Covenanter,  An  American 
Exposition  of  the  Covenant  of  the  League  of 
Nations,"  Being  a  Series  of  Letters  Written  by 
William  H.  Taft,  George  W.  Wickersham,  A. 
Lawrence  Lowell  and  Henry  W.  Taft  After  the 
Covenant  Had  Been  Revised.  (Doubleday,  Page 
&  Co.,  1919) 165 


95 


CONTENTS 

PAGE 

VIII.  The  Treaty  in  the  Senate.  Paper  Reprinted  prom 
an  Article  Published  in  the  New  York  Times  op 
May  30,  1919 185 

IX.  What  Is  to  be  Done  with  Our  Railroads?    Re- 

printed prom  Articles  Published  in  the  New 
York  Times  op  May  6-7,  1919 197 

X.  Recall  op  Decisions,  a  Modern  Phase  op  Impatience 

op  Constitutional  Restraints.  Paper  Read  at 
the  Annual  Meeting  of  the  New  York  State  Bar 
Association  Held  in  Utica,  N.  Y.,  January  24—25, 
1913 219 

XL     State    Control   op   Navigable   Waters.    Reprinted 

prom  Columbia  Law  Review  for  May,  1915     .      .  253 

XII.     The  Tobacco  Trust  Decisions.     Reprinted  prom  the 

Columbia  Law  Review  of  June,  1906     ....  277 

XIII.  An  Address  Delivered  at  the  Annual  Dinner  of 

the  New  York  State  Bar  Association  Held  in 
New  York  City,  January  18,  1919 295 

XIV.  President's  Address  at  the  Annual  Dinner  op  the 

New  York  State  Bar  Association,  January  17, 
1920 301 

XV.  Address  at  the  Dinner  to  Judge  O'Brien.  Remarks 
of  Mr.  Tapt,  Toastmaster,  at  the  Annual  Bar 
Dinner  of  the  New  York  County  Lawyers'  Asso- 
ciation, Given  in  Honor  op  Hon.  Morgan  J. 
O'Brien,  February  26,  1916 309 

XVI.  Speech  op  Mr.  Henry  W.  Taft  Delivered  Before 
the  American  Chamber  of  Commerce  in  Paris, 
France,  July  4,  1912 317 

XVII.  An  Appreciation  op  John  L.  Cadwalader.  Paper 
Read  at  the  Opening  op  the  Trenton  Public 
Library,  April  6,  1915 325 


OCCASIONAL  PAPERS  AND 
ADDRESSES  OF  AN  AMERICAN  LAWYER 


ADDRESS  TO  THE  HARVARD  LAW  SCHOOL 

STUDENTS 1 

Gentlemen  of  the  Harvard  Law  School: 

Before  passing  to  the  main  subject  of  my  address, 
I  wish  to  make  a  few  observations  upon  the  work  of 
this  school  and,  from  the  standpoint  of  a  practitioner 
trained  under  another  system,  to  point  out  the  good 
which  it  and  others  like  it  are  doing  for  the  profession. 

In  the  United  States,  almost  to  the  middle  of  the 
nineteenth  century,  methods  for  the  study  of  law  were 
crude  and  unscientific.  A  knowledge  of  the  law  was 
supposed  to  be  picked  up  in  lawyers'  offices,  with  little 
systematic  instruction.  The  modern  American  law 
school  has  been  a  development  from  this  haphazard 
method.  The  earliest  law  lectures  in  this  country  were 
delivered  by  James  Wilson  at  Philadelphia,  and  the 
first  of  the  series  was  listened  to  by  President  Wash- 
ington and  all  of  his  cabinet ;  but  they  would  be  found 
by  students  of  to-day  too  general  to  be  of  practical 
benefit.  The  earliest  law  school  of  the  modern  type 
was  the  one  at  Litchfield,  Connecticut,  which  became 
famous  in  the  early  part  of  the  nineteenth  century. 
The  Harvard  Law  School  was  founded,  I  believe,  in 
1817.  It  did  not,  however,  become  a  serious  institu- 
tion until  1829,  when  Story  became  the  Dane  professor 
at  law.  Other  law  schools  followed,  but  it  was  not 
until  thirty  years  ago  that  the  idea  was  generally  ac- 
cepted that  a  thorough,  systematic  training  in  a  law 
school  was  essential  to  a  proper  legal  education. 
There  are  now  in  existence  in  this  country  more  than 

i  Delivered  in  1908. 

3 


4  PAPERS  AND  ADDRESSES 

one  hundred  of  such  schools;  and  in  not  less  than 
eighteen  states  of  the  Union  three  years'  preparatory 
work  is  required  for  admission  to  the  bar. 

When  it  is  considered  that  the  science  and  history 
of  our  jurisprudence  have  been  developing  and  its 
literature  increasing  for  hundreds  of  years,  it  is  clear 
that  its  study  should  be  systematic.  If  the  law  is  to 
retain  its  character  as  a  learned  profession,  it  must 
be  studied  as  a  science,  its  relation  to  the  social  fabric 
must  be  understood,  and  its  ancient  ideals  regarded 
with  veneration.  You  will  hear,  and  it  cannot  be 
denied,  that  a  practical  knowledge  of  the  law  can  only 
be  obtained  by  experience  in  a  law  office;  but  only  in 
an  institution  dedicated  to  scientific  study  and  removed 
from  the  distractions  of  active  practice  can  the  gen- 
eral principles  of  our  jurisprudence  be  mastered;  and 
without  a  sympathetic  grasp  of  these,  no  man,  whatever 
his  gifts,  will  imbibe  the  true  spirit  of  the  noble  science 
which  we  profess. 

It  would  be  foreign  to  the  main  purpose  of  this 
address  to  enter  upon  a  discussion  of  the  admirable 
system  of  instruction  applied  in  this  school ;  but  I  can- 
not refrain  from  mentioning  one  thing  which  I  under- 
stand has  become  a  feature.  That  is  the  tendency  of 
your  professors  to  give  credit  to  the  student  not  so 
much  for  the  correctness  of  his  view  of  any  particular 
proposition,  as  to  the  character  of  his  reasons  for  hold- 
ing it.  This  is  justified  by  practical  experience. 
Much  of  the  time  of  every  practicing  lawyer  is  occu- 
pied in  supporting  views  which  are  ultimately  declared 
by  the  court  to  be  untenable.  Why,  then,  should  a 
student  be  expected  always  to  be  found  on  the  right 
side?  It  is  true  that  many  general  principles  of  the 
law  are  definitely  settled;  but  concrete  cases  rarely 
come  within  these  principles,  for  in  the  complexity  of 


HARVARD  LAW  SCHOOL  STUDENTS        5 

human  affairs  cases  identical  in  their  facts  seldom 
occur.  It  therefore  happens  that  the  task  of  the  lawyer 
and  of  the  judge  in  most  cases  is  to  determine  how 
far  the  peculiar  facts  of  a  given  case  make  a  general 
principle  inapplicable  and  bring  it  within  a  modifica- 
tion or  an  exception.  It  is  not  so  much  that  the  science 
of  the  law  is  inexact  as  that  human  affairs  continue  to 
present  novel  combinations  and  complications,  and  the 
mind  is  taxed  to  determine  how  established  principles 
shall  be  applied  to  such  new  conditions.  Dr.  Johnson 
recognized  this  when  he  observed  that  the  law  was  that 
science  in  which  the  greatest  powers  of  understanding 
were  applied  to  the  greatest  number  of  facts. 

And  so  you  must  not  be  discouraged  if  you  find  your- 
self reaching  wrong  conclusions  from  seemingly  sound 
reasons,  for  that  is  what  the  best  lawyers  are  con- 
stantly doing.  The  advantage  that  we  older  lawyers 
have  is  that  we  are  better  able  to  live  down  our  errors. 
It  is  related  that  Thurlow,  when  Lord  Chancellor  of 
England,  used  to  say  of  Loughborough,  who  also 
ascended  the  woolsack:  "That  damned  Scotchman  has 
the  gift  of  gab,  but  he  is  no  lawyer;  in  the  House  of 
Lords  I  get  Taffy  Kenyon,  or  some  one  else  who  does 
my  dirty  work,  to  start  some  law  doctrine  in  such  a 
way  that  the  fellow  must  get  up  to  answer  it  and  then 
I  leave  the  woolsack  and  give  him  such  a  thump  in 
the  bread  basket  that  he  cannot  recover  his  wind." 
And  yet  the  same  Lord  Thurlow,  after  he  left  the  wool- 
sack, found  himself  a  subject  of  criticism  equally  in- 
considerate. When  chancellor,  he  had  suggested  to 
Lord  Eldon  that  a  wooden  machine  might  be  invented 
with  which  to  draw  bills  and  answers  in  chancery. 
After  he  had  ceased  to  be  chancellor,  a  bill  was  drawn 
against  a  friend  of  his  and  Thurlow  advised  him  to 
submit  the  answer  to  Eldon,  who  was  then  attorney 


6  PAPEES  AND  ADDRESSES 

general.  The  latter  found  it  so  badly  drawn  that  he 
recommended  that  he  employ  some  lawyer  who  under- 
stood something  about  pleading  to  redraw  it.  Lord 
Thurlow  subsequently  met  Lord  Eldon  and  said  to 
him:  "So,  I  understand,  you  think  my  friend  Mack's 
answer  won't  do."  "Do?"  said  he.  "My  lord,  it 
won 't  do  at  all ;  it  must  have  been  drawn  by  that  wooden 
machine  which  you  formerly  told  me  might  be  invented 
to  draw  bills  and  answers. "  "  That  is  very  unlucky, ' ' 
says  Thurlow,  "and  impudent,  too,  if  you  had  known 
the  fact — that  I  drew  the  answer  myself." 

You  should  seek  to  cultivate  in  your  studies  accuracy 
of  observation,  clearness  of  thought,  precision  of  ex- 
pression and  a  knowledge  of  the  main  principles  of 
law.  These  are  necessary  to  the  making  of  a  good 
lawyer,  and  with  industry  and  patience  and  experience 
are  bound  to  bring  success.  But  do  not  forget  that 
the  practice  of  the  law  should  be  more  than  a  mere 
means  of  livelihood.  In  spite  of  its  imperfections, 
which  must  exist  in  any  system  for  the  conduct  of 
human  affairs,  our  jurisprudence  is  probably  as  per- 
fect a  system  as  that  which  any  civilization  has  pro- 
duced ;  and  Burke  spoke  truly  when  he  said  that  it  did 
more  "to  quicken  and  invigorate  the  understanding 
than  all  the  other  kinds  of  learning  put  together." 
Every  lawyer  may  do  something  to  preserve  and  im- 
prove the  principles  and  traditions  of  the  law,  and 
particularly  to  keep  them  uncorrupted  by  and  lifted 
above  the  prevailing  commercial  spirit  of  the  age. 
And  this  leads  me  to  speak  of  the  present  influence  of 
the  profession  in  the  community. 

It  has  recently,  and  I  fear  with  some  justice,  been 
said  that  within  the  last  quarter  of  a  century  the  pres- 
tige of  the  legal  profession  has  declined.  If  this  is 
true,  young  men  of  your  generation  can  address  them- 


HARVARD  LAW  SCHOOL  STUDENTS       7 

selves  to  no  more  lofty  purpose  than  the  correction  of 
such  an  unfortunate  situation.  The  tone  of  the  com- 
munity itself  cannot  but  suffer  if  the  influence  of  our 
profession  is  impaired.  While  lawyers  must  look  to 
the  profession  for  their  support,  they  are  no  less 
engaged  in  the  working  out  of  intellectual  problems  oi 
permanent  value  to  the  community  and  in  doing  this 
they  have  always  been  actuated  by  a  high  sense  of 
honor. 

In  1820  Erskine  said  in  the  House  of  Lords : 

"The  habits  of  my  professional  life  are,  I  hope,  a  useful 
shield  against  every  power  whatsoever.  I  was  bred  in  my 
early  youth  in  two  professions,  the  characteristics  of  each 
of  which  is  honor;  but  after  an  experience  of  very  many 
years,  I  can  say  with  truth  that  they  cannot  stand  higher  for 
honor  than  the  profession  of  the  law.  Amidst  unexampled 
temptations  which,  through  human  frailty,  have  produced 
their  victims,  the  greatest  bulk  of  the  members  of  it  are  sound ; 
and  the  cause  is  obvious — there  is  something  so  beautiful  and 
exalted  in  the  faithful  administration  of  justice  and  depar- 
ture from  it  so  odious  and  disgusting  that  a  perpetual  monitor 
is  raised  up  in  the  mind  against  the  accesses  of  corruption." 

I  believe  that  the  same  may  be  said  with  no  less 
truth  of  our  profession  at  the  present  time;  and  yet 
there  is  too  much  ground  to  suppose  that  a  different 
view  is  held  in  the  community  at  large.  The  impair- 
ment of  the  influence  of  any  of  the  learned  professions 
cannot  but  do  harm  to  society.  This  is  especially  true 
of  the  law,  because  it  comes  into  closer  contact  with 
human  affairs  in  a  greater  number  of  ways  than  any 
other  profession.  In  private  affairs,  the  destruction 
of  confidence  in  the  lawyers  would  go  very  far  to  affect 
the  individual  citizen  in  his  life,  liberty  and  pursuit  of 
happiness ;  but  the  most  serious  injury  would  be  to  the 


8  PAPERS  AND  ADDRESSES 

state  and  to  the  public  service.  The  integrity  of  our 
institutions  depends  more  upon  the  bar  and  the  bench 
than  upon  any  other  class  of  citizens;  and  the  public 
service  has  always  been  equipped  by  persons  having  a 
legal  education.  Two-thirds  of  our  Presidents,  two- 
thirds  of  our  United  States  senators  and  more  than 
half  of  our  representatives  in  the  lower  house  of  Con- 
gress and  our  state  legislatures  have  been  lawyers ;  and 
this  is  no  doubt  due  to  the  fact  that  the  experience  of 
a  lawyer  is  a  fairly  good  substitute  in  our  country  for 
the  special  training  for  government  service  in  other 
countries. 

In  1830  de  Tocqueville  thus  described  the  position 
of  lawyers  in  the  United  States: 

"As  the  lawyers  form  the  only  enlightened  class  whom  the 
people  do  not  mistrust,  they  are  naturally  called  upon  to 
occupy  most  of  the  public  stations.  They  fill  the  legislative 
assemblies  and  are  at  the  head  of  the  administration.  They 
consequently  exercise  a  powerful  influence  upon  the  forma- 
tion of  the  law  and  upon  its  execution.  .  .  . 

"The  lawyers  of  the  United  States  form  a  party  which  is 
but  little  feared  and  scarcely  perceived,  which  has  no  badge 
peculiar  to  itself,  which  adapts  itself  with  great  flexibility 
to  the  exigencies  of  the  time  and  accommodates  itself  with- 
out resistance  to  all  the  movements  of  the  social  body.  But 
this  party  extends  over  the  whole  community  and  penetrates 
into  all  the  classes  which  compose  it.  It  acts  upon  the  coun- 
try imperceptibly,  but  finally  fashions  it  to  suit  its  own 
purpose." 

This  fairly  describes  the  cause  and  the  extent  of  the 
former  influence  of  the  lawyers  in  the  United  States. 
And  why  has  this  situation  changed  in  recent  years  ?  I 
believe  that  the  cause  must  be  sought  in  conditions 
created  by  the  educational,  social  and  industrial  evolu- 
tion of  the  last  quarter  of  a  century. 


HARVARD  LAW  SCHOOL  STUDENTS        9 

With  the  spread  of  liberal  education  among  people 
engaged  in  all  kinds  of  business  pursuits,  the  members 
of  the  learned  professions  no  longer  enjoy  distinction 
on  account  of  their  intellectual  equipment.  The  day 
when  a  college  education  was  regarded  as  a  disqualifica- 
tion for  successful  participation  in  business  pursuits 
has  long  since  passed;  and  in  many  fields  of  activity 
the  lawyer  now  finds  that  he  no  longer  enjoys  the 
intellectual  supremacy  which  formerly  in  part  ac- 
counted for  his  position  of  influence.  But  unfortu- 
nately the  better  education  has  not  brought  to  the  busi- 
ness man  a  greater  reverence  for  the  spirit  of  the  law. 
On  the  contrary,  he  has  been  swept  along  by  the  march 
of  industrial  progress  and  in  the  strife  for  tangible 
results  has  become  impatient  both  of  the  restraints  of 
law  and  of  the  lawyers  who  advise  him  that  the  re- 
straints exist.  The  strenuous  effort  to  construct  and 
acquire  has  sensibly  impaired  the  Anglo-Saxon  rever- 
ence for  the  law  because  it  is  the  law.  The  man  of 
thought  and  ideals  has  been  subordinated  to  the  man  of 
action;  and  this  influence  has  created  a  tendency  to 
obliterate  the  line  which  should  be  maintained  by  law- 
yers themselves  between  the  business  and  the  profes- 
sional function.  I  doubt  whether  the  great  lawyers  of 
the  past,  like  Webster,  Clay,  Binney,  Sidney  Bartlett 
and  Mason  would  to-day  occupy  the  commanding  posi- 
tion which  they  enjoyed  in  their  time.  We  have  had 
perhaps  in  our  day  as  great  lawyers,  but  their  impor- 
tance as  citizens  has  been  dwarfed  by  the  greatness  and 
diversified  character  of  modern  intellectual  activities 
and  industrial  undertakings  in  which  men  of  other 
vocations,  much  more  than  formerly,  have  aroused  the 
interest  of  the  general  public. 

Such  men  as  0 'Conor  and  Carter  and  Choate  and 
Evarts  and  Root  and  Johnson  would  have  ranked  in 


10  PAPERS  AND  ADDRESSES 

legal  ability  and  attainments  with  the  greatest  lawyers 
of  the  nineteenth  century,  and  yet  their  professional 
distinction  has  not  given  them  the  same  position  of  in- 
fluence in  the  community. 

But  neither  the  wider  spread  of  culture  and  educa- 
tion, nor  the  increased  diversity  of  intellectual  activ- 
ities, nor  the  great  industrial  development  of  recent 
years  fully  accounts  for  the  condition  of  the  profession 
which  we  are  considering.  More  specific  causes  are  to 
be  found  for  which  the  profession  itself  is  responsible ; 
and  it  is  these  to  which  I  wish  to  direct  your  particular 
attention,  for  with  your  generation  must  rest  the  cure 
of  any  evils  which  they  have  produced. 

Lawyers  of  to-day  come  in  touch  with  business  mat- 
ters in  a  way  formerly  seldom  witnessed.  With  the 
recent  growth  of  industrial  and  commercial  enterprise, 
it  happens  with  too  much  frequency  that  lawyers  who 
have  attained  to  a  position  of  prominence  and  influ- 
ence have  permitted  themselves  to  become  financially 
interested  in  projects  committed  to  their  professional 
care.  They  have  become  directors  of  corporations  for 
which  they  are  counsel ;  they  have  performed  the  func- 
tion of  promoters;  they  have  increasingly  made  their 
compensation  dependent  upon  the  success  of  the  busi- 
ness concerning  which  they  advise;  they  have  prac- 
tically converted  their  offices  into  business  agencies 
while  holding  themselves  out  to  the  public  as  practicing 
lawyers.  Indeed,  to  such  an  extent  have  these  things 
prevailed  that  many  clients,  finding  lawyers  of  this 
kind  convenient  business  coadjutors,  are  not  content  to 
employ  a  lawyer  who  confines  himself  to  professional 
advice  and  is  not  resourceful  in  working  out  purely 
business  projects.  It  has  been  quite  a  natural  transi- 
tion from  this  condition  that  many  lawyers  have  left 
the  ranks  of  the  profession  and  have  become  bankers 


HARVARD  LAW  SCHOOL  STUDENTS      11 

and  railroad  and  corporate  officers,  or  have  engaged 
in  other  commercial  pursuits.  I  do  not  wish  to  be  un- 
derstood as  implying  that  these  facts  necessarily  indi- 
cate anything  improper  or  dishonorable ;  but  I  am  con- 
fident that  they  disable  a  lawyer  from  exercising,  ac- 
cording to  the  best  professional  ideals,  his  proper  func- 
tion. A  lawyer  is  not  a  safe  counselor  in  a  matter  in 
which  his  own  financial  interest  is  involved ;  but  far  the 
greater  harm  results  from  the  confusion  created  in  the 
mind  of  the  public  between  the  professional  and  the 
business  function.  If  members  of  the  bar  who  habit- 
ually engage  in  directing  business  undertakings  would 
call  themselves  promoters  or  business  men  and  not  law- 
yers, the  injury  would  be  minimized.  But  the  tendency 
is  rather  to  gain  for  their  undertakings  the  advantage 
of  the  respectability  and  influence  which  attaches  to 
their  character  as  lawyers.  For  the  greater  number 
of  representative  lawyers  scrupulously  draw  the  line 
and  do  not  permit  themselves  to  act  in  the  capacity  of 
promoters  or  business  men;  and  some  of  the  largest 
and  most  prosperous  law  firms  in  the  city  where  I  prac- 
tice, believing  that  advice  by  a  lawyer  who  is  financially 
interested  is  attended  with  great  risk  of  mistake,  in- 
sist that  no  partner  shall  be  financially  interested  in 
any  transaction  with  reference  to  which  he  gives  pro- 
fessional advice.  It  is  also  true  that  many  of  the 
wisest  business  men  differentiate  between  the  business 
and  the  professional  side  of  a  question  and  seek  a  law- 
yer who  will  confine  himself  strictly  to  advice  as  to  the 
law.  There  are,  however,  many  conspicuous  excep- 
tions to  these  salutary  rules.  Fortunately,  lawyers 
who  mix  business  enterprise  with  law  practice  do  not 
hold  a  commanding  position  in  the  profession,  but  the 
harm  comes  from  the  fact  that  the  same  discrimina- 
tion is  not  generally  exercised  by  the  lay  community. 


12  PAPERS  AND  ADDRESSES 

In  this  connection  it  is  pertinent  to  say  that  it  has 
now  become  a  common,  if  not  a  universal,  custom  for 
railroad  companies  and  great  industrial  combinations 
as  well,  to  employ  attorneys  or  counsel  upon  an  annual 
salary,  in  return  for  which  they  devote  themselves 
exclusively  to  the  business  of  their  clients.  While  the 
tendency  arising  from  the  devotion  of  a  lawyer  to  a 
single  interest  may  be  to  create  a  bias,  I  can  give  per- 
sonal testimony  of  the  fact  that  many  salaried  counsel 
of  great  corporations  are  men  of  the  highest  personal 
character  and  legal  attainments,  and  I  would  not  re- 
flect upon  them  as  a  class.  Nevertheless,  it  is  inevit- 
able that  when  a  lawyer  withdraws  from  general  prac- 
tice he  ceases  to  exert  among  the  members  of  his  pro- 
fession so  great  an  influence  as  those  who  have  retained 
their  professional  independence;  and  an  attorney  in 
the  employ  of  a  corporation,  however  worthy  he  may 
be,  is  classed  by  the  public  not  so  much  as  a  lawyer 
as  an  employee  of  the  corporation,  and  it  results  that 
the  penalty  for  corporate  sins  is  sometimes  visited 
upon  him.  When  it  is  considered  that  corporations 
seek  the  best  available  legal  talent  and  that  the  number 
of  salaried  counsel  is  a  very  appreciable  proportion  of 
the  best  practicing  lawyers,  the  effect  upon  the  stand- 
ing of  the  whole  body  of  lawyers  becomes  manifest. 

I  would  not  be  understood  as  saying  that  in  the  great 
industrial  development  of  the  modern  day  a  lawyer 
who  has  business  aptitude  is  not  a  more  valuable  ad- 
viser than  one  who  has  only  legal  ability;  for  that 
would  not  be  stating  the  fact.  Such  a  lawyer  can  ad- 
vise a  business  client  more  sympathetically,  and  conse- 
quently more  usefully,  than  one  who  has  confined  him- 
self strictly  to  questions  of  law.  Indeed,  more  than 
ever  before,  the  correct  application  of  legal  principles 
to  the  novel  problems  presented  by  the  great  commer- 


HARVARD  LAW  SCHOOL  STUDENTS      13 

cial  and  industrial  development  of  the  last  twenty-five 
years  is  dependent  upon  some  knowledge  of  the  busi- 
ness conditions  to  which  they  are  to  be  applied.  One 
virtue  of  our  system  of  law  lies  in  the  flexibility  with 
which  it  adjusts  itself  to  the  development  of  human 
affairs,  and  at  no  previous  time  has  this  been  so  much 
called  into  requisition.  If  the  law  is  not  quick  to  re- 
spond and  apply  itself  to  the  combinations  and  com- 
plexities of  modern  industrial  and  commercial  develop- 
ment, it  will  not  adequately  perform  its  most  useful 
function.  But  it  is  not  necessary  that  a  lawyer  should 
himself  become  involved  in  business  ventures  in  order 
to  apply  the  principles  of  the  law  to  modern  problems ; 
and  it  would  seem  just  as  incongruous  as  it  ever  was  to 
see  great  leaders  of  the  bar  like  James  C.  Carter,  or 
Joseph  H.  Choate,  or  John  G.  Johnson  acting  the  part 
both  of  legal  advisers  and  of  promoters  in  great  busi- 
ness enterprises. 

We  are  next  concerned  with  what  is  called  the  corpo- 
ration lawyer.  The  term  as  popularly  used  has  become 
an  opprobrious  epithet  rather  than  a  well-understood 
definition;  for  it  would  be  difficult  to  find  in  this 
country  a  lawyer  of  standing  who  has  not  advised  cor- 
porations. When  it  is  considered  that  ninety  per  cent, 
of  the  business  of  the  country  is  done  by  corporations, 
it  will  readily  appear  that  a  large  part  of  the  law  busi- 
ness of  the  country  must  relate,  directly  or  indirectly, 
to  their  affairs.  Unfortunately,  however,  there  is  too 
frequently  foundation  for  the  charges  which  have  been 
made  as  to  the  abuses  and  dishonesty  of  corporate 
management.  Many  lawyers  have  become  so  identified 
with  the  interests  of  corporations  the  conduct  of  which 
has  given  rise  to  such  charges  and  have  aided  them  to 
such  an  extent  in  evading  the  law  or  in  taking  the 
chances  of  extremely  doubtful  interpretations  of  it, 


14  PAPERS  AND  ADDRESSES 

that  there  has  been  justly  visited  upon  the  lawyers 
themselves  the  same  condemnation  that  corporate  mis- 
conduct has  aroused.  It  is  to  such  members  of  our 
profession  that  the  words  "corporation  lawyers"  in 
their  opprobrious  sense  should  be  applied;  and  it  goes 
without  saying  that  as  a  class  they  have  brought  great 
discredit  upon  the  profession. 

I  should  not  fully  cover  this  part  of  my  subject  with- 
out mentioning  the  change  in  the  social  position  of 
members  of  the  profession  in  their  respective  com- 
munities, particularly  in  the  great  centers  of  popula- 
tion. The  accumulation  of  great  wealth  from  sources 
other  than  professional  incomes  enables  some  lawyers 
to  indulge  in  the  accessories  of  sumptuous  living;  and 
instances  of  this  kind  are  numerous  enough  to  create 
an  impression  in  the  minds  of  the  public  that  the  habits 
of  the  bar  as  a  class  are  no  longer  characterized  by 
plain  living  and  high  thinking.  It  is  no  doubt  true 
that  professional  incomes  of  all  kinds  have  greatly 
increased;  but  lawyers  as  a  class  continue  to  work 
hard,  live  well  and  die  poor.  Displays  of  individual 
wealth  have  undoubtedly  contributed  in  some  measure 
to  lead  the  undiscriminating  public  to  group  the  mem- 
bers of  the  profession  with  those  whose  chief  occupa- 
tion is  that  of  making  money;  and  this  impression  is 
accentuated  by  reckless  newspaper  statements  of  pro- 
fessional incomes.  Quite  recently,  for  instance,  a 
newspaper  article  purporting  to  give  notable  fees  re- 
ceived by  distinguished  counsel,  stated  that  one  of  the 
most  noted  lawyers  in  the  United  States  had  received 
for  his  services  in  the  Income  Tax  case  $200,000;  and 
I  have  his  own  word  as  authority  for  the  statement  that 
his  total  fee  was  $30,000.  This  sort  of  exaggeration 
is  not  discountenanced  by  some  lawyers  who,  without 
technically  violating  the  professional  tradition  against 


HARVARD  LAW  SCHOOL  STUDENTS      15 

advertisement,  do  not  discourage  the  appearance  of 
their  names  in  the  newspapers  in  connection  with  the 
receipt  of  fabulous  sums.  Distinction  at  the  bar  is 
sometimes  legitimately  enhanced  by  newspaper  com- 
ment ;  but  some  of  the  most  distinguished  members  of 
the  profession  rarely  figure  in  the  newspapers  and  are 
little  known  to  the  general  public.  Unfortunately, 
there  are  charlatans  in  our  profession,  and  the  modern 
newspaper  affords  them  ample  opportunity  to  bring 
their  names  frequently  before  an  undiscriminating 
public ;  and  the  factitious  newspaper  reputation  of  un- 
worthy members  of  the  bar  has  undoubtedly  been  one 
of  the  causes  which  have  contributed  to  lessen  the  in- 
fluence of  the  body  of  its  members  as  a  moral  and  in- 
tellectual force  in  the  community.  This  same  class  of 
lawyers  also  indulge  in  questionable  methods  for  secur- 
ing business  and  much  might  be  said,  if  time  sufficed, 
upon  this  as  one  of  the  causes  which  has  brought  cer- 
tain classes  of  lawyers  into  disrepute.  We  are  all  in- 
terested to  secure  business ;  and  while  there  is  perhaps, 
nothing  morally  wrong  in  procuring  clients  by  active 
solicitation  or  by  public  advertisement,  it  is  better  that 
these  things  should  not  be  done.  As  Dr.  Johnson 
wisely  said,  "a  man  of  sensibility  would  disdain  to  do 
them,"  although  he  slyly  added  that  he  would  have  a 
lawyer  ''inject  a  little  hint  now  and  then  to  prevent  his 
being  overlooked." 

These  are  some  of  the  things  which  have  affected  the 
prestige  of  our  profession.  They  are  no  doubt  con- 
fined to  a  relatively  small  portion  of  the  entire  mem- 
bership of  the  bar.  But  the  profession  at  large  has 
suffered  from  the  conduct  and  tone  of  the  minority 
whose  activities  are  more  conspicuous  though  less 
creditable. 

I  have  not  attempted  to  deal  with  another  kind  of 


16  PAPERS  AND  ADDRESSES 

criticism  of  the  bar  because  it  has  been  encountered  in 
all  ages.  It  has  sprung  oftentimes  from  prejudice  and 
ignorance.  Sometimes,  however,  it  has  been  based 
upon  real  abuses  or  upon  the  failure  of  the  law  to 
keep  pace  with  the  development  of  civilization.  His- 
tory and  literature  abound  with  disparaging  criticism 
of  this  kind.  Even  the  mother  of  Hardwicke,  the 
greatest  of  England's  Lord  Chancellors,  insisted  that 
her  son  should  be  apprenticed  to  an  "honester  trade" 
than  that  of  an  attorney,  although  her  husband,  the 
chancellor's  father,  had  followed  that  profession. 

The  poet  Coleridge,  in  "The  Devil's  Thoughts," 
said: 

"He  saw  a  lawyer  killing  a  viper 
On  a  dunghill  hard  by  his  own  stable; 
And  the  devil  smiled,  for  it  put  him  in  mind 
Of  Cain  and  his  brother  Abel." 

In  Jarndyce  against  Jarndyce  and  Bardell  against 
Pickwick,  Dickens  leveled  his  satire  at  real  abuses,  and 
there  is  much  of  the  same  kind  of  criticism  in  Warren 's 
"Ten  Thousand  a  Year." 

The  trust  reposed  in  a  lawyer  will  always  subject 
him  to  temptations  peculiarly  difficult  to  resist,  and  so 
long  as  human  nature  remains  unchanged,  individual 
members  of  the  bar  will  yield  and  the  bar  itself  will  in 
some  measure  suffer.  The  immense  increase  in  the 
numbers  of  the  profession  in  this  country  and  the 
greater  value  of  the  interests  entrusted  to  their  care, 
have  brought  and  will  bring  to  public  attention  a 
greater  number  of  flagrant  instances  where  members  of 
the  bar  have  proved  unworthy  of  their  trust.  But  I 
cannot  deal  with  this  condition,  as  I  have  intended  to 
confine  myself  to  matters  which  relate  not  so  much  to 
frailties  of  individual  lawyers,  as  to  the  changes  in 


HARVARD  LAW  SCHOOL  STUDENTS      17 

the  profession  wrought  by  the  peculiar  conditions  of 
social  and  business  life  of  to-day.  I  will  say,  however, 
that  in  spite  of  individual  instances  of  dishonesty,  I 
am  confident  that  the  moral  tone  of  the  bar  as  a  class 
has  not  been  lowered.  Its  members  are  inspired  by 
the  same  sense  of  justice  and  the  same  loyalty  to  their 
clients  as  in  the  past.  Indeed,  I  think  the  present 
standards  of  propriety  and  morality  will  compare  as 
favorably  as  ever  with  those  of  other  classes  in  the 
community  and  particularly  of  business  men.  It  still 
remains  the  fact  that  the  habit  of  fidelity  to  the  in- 
terests of  the  client,  and  the  better  understanding  of  the 
duty  imposed  by  the  fiduciary  relation,  have  a  more 
elevating  influence  upon  the  character  of  the  lawyer 
than  the  habit  of  the  business  man  of  making  money 
for  himself  alone,  without  the  restraint  imposed  by  a 
sense  of  responsibility  which  usually  springs  from 
being  entrusted  with  the  interests  and  the  welfare  of 
others. 

That  a  remedy  exists  for  the  condition  I  have  men- 
tioned I  have  no  doubt ;  and  it  is  the  rising  generation 
which  must  bring  from  the  study  of  the  law  in  such 
institutions  as  this  a  determination  to  raise  our  pro- 
fession above  the  demoralizing  influence  of  commercial- 
ism, and  restore  it  to  its  former  place  of  honor.  The 
highest  ideals  of  professional  conduct  are  to  be  ab- 
sorbed from  the  study  of  the  classics  of  the  law.  It  is 
from  such  study  that  you  will  receive  your  most  lasting 
inspiration  to  regard  the  law  as  a  science  and  to  stand 
against  any  idea  that  its  practice  can  be  made  a  com- 
mercial undertaking.  But  no  lawyer  should  be  con- 
tent to  confine  his  activities  to  the  private  practice  of 
his  profession.  He,  more  than  any  other  member  of 
the  community,  owes  it  to  his  country  to  furnish  an 
example  of  the  faithful  performance  of  the  duties  of 


18  PAPERS  AND  ADDRESSES 

citizenship.  He  should  keep  in  touch  with  public  life 
and  do  his  part  to  keep  it  on  a  high  level  of  purity  and 
efficiency,  for  no  one  is  better  equipped  for  such  service. 
He  should  participate  in  all  other  forms  of  political 
activity  open  to  the  citizen.  And  if  he  holds  office,  he 
should  remember  that  the  public  is  his  client  and  that 
he  cannot  serve  that  client  in  any  way  so  well  as  by 
strict  adherence  to  the  best  traditions  of  his  own  pro- 
fession. 

Rufus  Choate,  in  an  address  delivered  before  this 
law  school  in  1845,  said  that  it  had  been  the  office  of  the 
American  lawyers  of  his  day  to  interpret,  administer 
and  maintain  the  constitutions  of  the  country  and  that 
they  had  thereby  "  shared  in  the  dignity  of  founders 
of  states,  of  restorers  of  states,  of  preservers  of  states. 
I  said  and  I  repeat  that  while  lawyers,  and  because  we 
are  lawyers,  we  are  statesmen.  We  are  by  profession 
statesmen.  And  who  may  measure  the  value  of  this 
department  of  public  duty  ? ' ' 

It  may  be  that  it  requires  to-day  more  initiative  and 
positive  effort  to  perform  the  lawyer's  duty  as  a  states- 
man, because  we  have  passed  that  period  where  the 
shaping  of  our  form  of  government  depended  so  much 
on  the  interpretation  of  the  fundamental  law.  The 
epoch-making  questions  of  constitutional  limitations  in 
the  settlement  of  which  the  great  lawyers  of  the  first 
century  of  our  government  acted  also  the  part  of  great 
statesmen,  no  longer  so  frequently  arise.1  Until  Mar- 
shall, as  a  Justice  of  the  Supreme  Court,  began  his 
career,  the  Constitution  was  no  more  a  living  organism 
than  the  constitutions  of  Mexico  or  of  some  of  the 
Latin-American  republics  of  South  America,  whose 
mere  words  are  equally  admirable.    An  interpretation 

i  See,  however,  the  important  questions  which  have  arisen  since  this 
address  was  delivered  and  which  are  referred  to  in  my  address  to  the 
New  York  State  Bar  Association,  post,  p.  23. 


HARVARD  LAW  SCHOOL  STUDENTS      19 

less  statesmanlike  than  his  might  have  made  the  clauses 
of  the  Constitution  little  more  than  futile  rhetoric. 
While  it  is  true  that  great  constitutional  questions 
arise  less  frequently  in  the  ordinary  practice  of  a  law- 
yer than  they  did  in  the  first  half  century  of  our  history, 
it  is  also  true  that  novel  social  and  industrial  develop- 
ments are  bringing  to  our  attention  new  questions  of 
constitutional  law,  and  many  clauses  of  the  Constitu- 
tion are  being  resorted  to  which  have  never  before 
received  judicial  interpretation.  The  Supreme  Court 
has  decided  the  manner  in  which  the  limitations  of  the 
Constitution  shall  be  imposed  and  a  great  body  of  con- 
stitutional precedents  aids  in  the  solution  of  new  ques- 
tions. And  so,  although  a  multitude  of  other  matters 
occupies  the  attention  of  the  practicing  lawyer,  just 
as  great,  just  as  novel  and  just  as  difficult  questions  of 
constitutional  law  are  pressing  for  solution,  and  the 
welfare  of  the  country  is  just  as  much  dependent  upon 
the  manner  in  which  they  are  solved,  as  in  the  day  of 
Rufus  Choate.  No  inspiration  can  be  greater  for  a 
lawyer  than  to  address  himself  to  the  solution  of  such 
questions,  not  with  the  narrow  perspective  of  a  tech- 
nical lawyer  bound  down  by  his  subtleties  and  quiddi- 
ties, but  by  the  broad  view  of  an  American  lawyer  act- 
ing in  his  noblest  role  of  a  constructive  statesman. 

It  may  be  thought  that  I  have  been  setting  a  standard 
which  no  one  can  reach  and  make  a  living.  I  do  not 
think  so.  But  even  if  I  have,  it  is  well  to  reflect  upon 
these  things  and  to  establish  early  in  your  career  cor- 
rect ideals.  Your  task  will  then  be  easier  and  you  will 
not  readily  yield  to  the  temptations  which  now  more 
than  ever  before  beset  the  practice  of  the  law.  In 
spite  of  the  intense  practicability  of  the  age,  it  is  still 
possible  that  there  shall  be  to-day  the  perfect  lawyer, 
of  whom  it  may,  in  the  words  of  a  quaint  writer  of  the 


20  PAPERS  AND  ADDRESSES 

seventeenth  century,  be  said:  "While  he  lives,  he  is  the 
delight  of  the  courts,  the  ornament  of  the  bar,  the 
glory  of  his  profession,  the  terror  of  deceit,  the  oracle 
of  his  country;  and  when  death  shall  call  him  to  the 
bar  of  Heaven  by  a  habeas  corpus,  he  will  find  his 
Judge  his  advocate;  nonsuit  the  Evil  One,  obtain  a 
liberate  from  all  his  infirmities  and  continue  still  one 
of  the  long  robe  in  glory." 

Such  lawyers  still  exist.  Moreover,  it  is  only  from 
such  as  they  that  the  bar  chooses  its  real  leaders.  And 
so  long  as  the  profession  itself  thus  continues  to  recog- 
nize and  apply  the  true  tests  for  professional  distinc- 
tion, we  need  not  be  discouraged  if  extrinsic  causes 
have  temporarily  lessened  its  influence  in  the  com- 
munity. 


SOME  RESPONSIBILITIES  OF  THE 
AMERICAN  LAWYER 


II 

SOME  RESPONSIBILITIES  OF  THE 
AMERICAN  LAWYER  * 

Procedure,  remedies  and  court  organizations  outlive 
their  usefulness  after  periods  of  fairly  uniform  dura- 
tion. The  need  for  correcting  the  methods  of  adminis- 
tering the  law  is  constantly  recurring.  While  we  may 
view  with  caution  proposals  to  make  radical  changes 
in  the  common  law,  and  in  the  equally  revered,  if  less 
ancient,  principles  embodied  in  our  Constitution,  we 
should  never  shrink  from  a  candid  inquiry  as  to 
whether  the  administration  of  justice  is  too  technical 
or  too  costly  or  too  tardy,  and  whether  its  methods  are 
so  at  variance  with  our  national  habits  and  thought  as 
to  obscure  the  beneficent  principles  of  our  system  of 
law. 

It  is  especially  fitting  at  the  present  time  to  make 
such  an  inquiry. 

The  war  and  its  distressing  after-effects  are  bringing 
the  world  face  to  face  with  real  values  in  life,  partic- 
ularly in  the  realm  of  the  intellectual  and  the  spiritual ; 
and  this  will  lead  to  a  scrutiny  of  existing  institutions 
more  searching  than  in  normal  times. 

SIMPLIFICATION  OF  PROCEDURE 

The  reasonable  limits  of  this  address  do  not  permit 
me  to  enter  upon  a  discussion  of  the  comparative 
merits  of  the  pending  projects  for  simplifying  our 
court   procedure.     But    I   am   persuaded    that    there 

i  President's  address,  delivered  before  the  New  York  State  Bar  Associ- 
ation, at  its  annual  meeting,  held  in  New  York  city  January  16-17,  1920. 

23 


24  PAPERS  AND  ADDRESSES 

should  be  no  further  delay  in  arriving  at  an  agreement 
upon  some  plan.  A  radical  simplification  is  one  of 
the  crying  needs  of  the  times.  The  public  cares  little 
about  whether  there  is  to  be  a  short  code  supplemented 
by  rules  of  court,  or  a  longer  code  affording  greater 
flexibility  to  respond  to  changing  needs.  Differences 
concerning  such  matters  will  continue  to  exist,  and  it 
cannot  be  expected  that  any  reform  will  ever  receive 
unanimous  approval. 

"We  lawyers  speak  of  the  division  of  the  body  of  our 
law  into  the  substantive,  the  adjective,  the  procedural 
and  the  remedial.  But  such  terms  have  no  significance 
to  the  general  public.  If  our  methods  of  procedure 
are  uncertain  and  complicated,  and  cause  delay,  or  if 
our  rules  of  evidence  and  the  manner  in  which  we  con- 
duct our  trials  are  ill  adapted  to  bringing  out  the 
truth,  or  if  existing  remedies  fail  of  their  purpose,  it 
will  do  little  good  for  us  to  glorify  our  substantive  law. 
The  lay  public  cares  little  about  the  theoretical  per- 
fection of  the  principles  of  our  jurisprudence;  and  if 
the  machinery  for  their  application  to  concrete  cases 
is  so  imperfect  that  they  cannot  be  readily  invoked, 
condemnation  will  extend  to  our  entire  judicial  system. 

The  fact  that  the  time  for  a  reexamination  of  our 
procedure  has  arrived  ought  not  to  be  a  source  of  dis- 
couragement. In  the  practice  of  a  profession  like 
ours,  the  ingenuity  of  the  lawyer  frequently  directs 
itself  to  procedural  technicalities.  They  afford  oppor- 
tunities for  tactical  advantage,  and  that  is  a  part  of 
the  game.  We  do  not  stop  in  the  heat  of  contest  to 
inquire  whither  a  repetition  of  such  practices  may  lead, 
and  gradually,  under  any  system,  procedure  may  be- 
come the  complicated,  mysterious  and  subtle  means  by 
which  fundamental  principles  are  obscured,  and  the 
vindication  of  the  rights  of  the  individual  retarded  or 


THE  AMERICAN  LAWYER  25 

defeated.  Partly  on  account  of  this  natural  tendency 
and  partly  on  account  of  changed  conditions  of  life, 
it  had  been  found  necessary  every  thirty  or  forty  years 
to  consolidate  procedural  statutes,  simplify  their  lan- 
guage and  supply  defects  and  omissions.  And  we  have 
now  got  into  a  condition  where  an  even  more  radical 
reform  is  necessary. 

THE  LAW  OF  EVIDENCE 

There  has  been  a  tendency  in  this  country  to  regard 
the  rules  of  evidence  as  a  branch  of  substantive  law,  or 
at  least  as  of  equal  importance.  We  have  been  far 
too  inert  in  subjecting  them  to  a  scientific  revision. 
While  changes  have  been  made  by  statute  from  time 
to  time,  the  law  of  evidence  has  rarely,  if  ever,  been 
made  the  subject  of  comprehensive  reexamination. 
Restrictions  upon  a  free  investigation  of  facts  have 
been  retained  which,  under  modern  conditions,  are  fre- 
quently impeding,  rather  than  facilitating,  the  ascer- 
tainment of  truth.  Many  of  these  restrictions  are 
rightfully  regarded  by  litigants,  juries  and  the  public 
as  interposing  obstacles  which  wise  and  cautious  men 
do  not  consider  necessary  in  making  investigations  on 
which  they  base  important  action. 

We  must,  of  course,  have  rules  of  evidence.  But  it 
is  also  true  that  much  of  the  modern  law  of  evidence  is 
a  matter  of  recent  development.  As  a  system,  it  is 
scarcely  two  centuries  old.  Edmund  Burke  upon  the 
trial  of  Warren  Hastings  is  said  to  have  protested  his 
ignorance  of  the  law  of  evidence,  and  to  have  said  it 
could  be  comprised  in  so  small  a  compass  that  a  parrot 
he  had  known  might  get  the  rules  by  rote  in  one-half 
hour,  and  repeat  them  in  five  minutes. 

The  effort  of  our  law  is  to  base  rules  of  evidence 
upon   sound  reason.     But  a  change   in  the  business 


26  PAPERS  AND  ADDRESSES 

habits,  in  the  social  customs,  in  the  moral  tendencies 
and  even  in  national  or  state  prejudices,  makes  the 
reasons  of  yesterday  the  bare  subtleties  and  the  seem- 
ing caprice  of  to-day. 

Any  lawyer  observant  of  the  effect  produced  by  our 
trial  procedure  upon  lay  witnesses,  spectators  and 
jurors,  must  have  noted  their  dissatisfaction,  more  or 
less  articulate,  with  our  rules  of  evidence,  and  their 
tendency  to  regard  them  not  only  as  highly  artificial, 
but  also  as  rather  mysterious  and  subtle  obstacles  to 
a  full  investigation  of  facts.  While  such  impressions 
on  the  lay  mind  should  not  lead  us  to  abandon  rules 
based  upon  sound  reason,  neither  should  any  fancied 
sanctity  attaching  to  the  law  of  evidence  on  account 
of  its  antiquity  prevent  us  from  subjecting  it  from 
time  to  time  to  a  reexamination,  for  the  purpose  of  de- 
termining whether  it  continues  to  perform  the  function 
for  which  it  is  designed.  We  should  rather  be  guided 
by  the  kind  of  common  sense  which  led  Lord  Chief 
Justice  Cockburn  to  say:  " People  were  formerly 
frightened  out  of  their  wits  about  admitting  evidence, 
lest  juries  should  go  wrong.  In  modern  times  we  ad- 
mit the  evidence  and  discuss  its  weight. "  (R.  v.  Birm- 
ingham, 1  B.  &  S.  763.)  Under  the  influence  of  such 
considerations,  rules  of  evidence  are  applied  in  Eng- 
land with  far  less  rigidity  than  in  this  country.  And 
we  may  well  consider  whether  we  ought  not  here  to 
vest  in  our  trial  judges  a  wider  discretion,  not  subject 
to  review,  under  which  there  may  be  a  greater  liber- 
ality in  such  matters  as  res  gestae,  and  hearsay  and 
secondary  evidence. 

That  the  subject  needs  reiteration  is  evident  from 
the  disregard  of  such  a  warning  as  that  of  Mr.  Root 
to  the  members  of  the  American  Bar  Association  in 
1915,  when  he  said: 


THE  AMERICAN  LAWYER  27 

''Our  trial  practice  in  the  admission  and  exclusion  of 
evidence  does  not  agree  with  the  common  sense,  the  expe- 
rience, or  the  instincts  of  any  intelligent  layman  in  the 
country.  .  .  .  How  common  it  is  to  see  an  unsophisticated 
witness  on  the  stand  trying  to  tell  a  true  story  about  some 
event  with  which  he  is  familiar  and  continually  stopped  and 
bewildered  by  objections  based  upon  distinctions  which  do 
not  exist  in  his  mind  at  all,  and  finally  leaving  the  stand 
with  a  feeling  that  he  has  been  bottled  up  and  not  allowed 
to  tell  the  truth.  We  apply  these  same  rules  with  the  same 
rigidity  to  women,  whose  minds  work  in  an  entirely  different 
way  from  the  mind  of  any  lawyer  who  ever  had  anything  to 
do  with  devising  or  developing  the  rules  of  evidence.  It  is 
an  exceedingly  difficult  thing  to  tell  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  on  the  witness  stand,  as 
any  lawyer  who  has  been  a  witness  must  realize;  and  the 
simplest  and  best  way  to  get  that  done  is  to  come  as  near  as 
possible  to  allowing  people  to  tell  their  stories  their  own 
way. ' ' 

Space  will  not  permit  me  to  mention  many  of  the 
anomalies  of  our  present  rules  of  evidence.  Two  in- 
stances will  suffice  as  illustrations: 

Formerly,  the  disqualification  of  a  witness  on  ac- 
count of  interest  excluded  much  pertinent  testimony. 
Almost  all  such  restrictions  have  now  been  abolished. 
One,  however,  is  retained  in  this  state  by  Section  829 
of  the  Code,  which  excludes  the  testimony  of  a  person 
interested  in  the  event  of  a  suit  concerning  a  personal 
transaction  with  a  deceased  person  through  whose 
estate  he  may  obtain  an  advantage.  This  restriction 
frequently  works  intolerable  hardship  upon  honest  lit- 
igants. The  strictest  interpretation  has  been  placed 
upon  the  rule  and  it  has  been  the  subject  of  a  bewilder- 
ing labyrinth  of  decisions.  The  courts  have  gone  to 
the  extreme  of  subtlety  in  applying  what  they  conceive 
to  be  its  spirit.     But  the  question  of  the  wisdom  of  the 


28  PAPERS  AND  ADDRESSES 

rule  has  received  little  attention.  Its  existence  rests 
solely  upon  the  assumption  that  our  process  of  investi- 
gating truth  upon  the  trial  of  the  case  is  inadequate  to 
overcome  the  danger  of  fraud  and  perjury;  and  that 
assumption  I  believe  to  be  without  warrant.  For  if 
cross-examination  does  not  uncover  an  attempt  at 
falsification  the  mere  existence  of  interest  will  subject 
the  testimony  of  a  witness  to  the  closest  scrutiny  by 
court  and  jury,  while  the  network  of  circumstances  that 
a  trial  always  discloses  will  go  far  to  remove  the  dan- 
ger guarded  against. 

Another  part  of  our  procedure  which  needs  thor- 
oughgoing reform  is  that  governing  the  testimony  of 
medical  experts.  Juries  are  inclined  to  pay  little  heed 
to  such  evidence,  however  eminent  or  however  numer- 
ous the  experts  may  be.  They  generally  seek,  as  in- 
deed do  both  counsel  and  courts,  to  arrive  at  their 
conclusions  from  other  proof.  Their  conclusions  are 
based,  not  so  much  upon  the  refinements  of  the  medical 
science  as  upon  common  sense  applied  under  the  in- 
structions of  the  court  to  proof  of  objective  circum- 
stances. Lengthy  hypothetical  questions,  with  their 
assumptions  of  fact  based  on  disputed  testimony,  pre- 
sent an  aspect  of  artificiality  and  frequently  afford 
nothing  but  amusement  to  jurymen.  An  effort  to  un- 
derstand such  questions  and  to  analyze  the  prepared 
answers  would  throw  an  ordinary  jury  into  confusion ; 
and  courts  themselves  repeatedly  testify  to  their  low 
estimate  of  evidence  thus  elicited. 

Largely  on  account  of  the  condition  of  our  law  of 
evidence,  trials  have  become  burdened  and  delayed  by 
objections  and  exceptions  and  arguments,  for  which  it 
would  be  idle  to  attempt  to  place  the  responsibility 
either  upon  the  counsel  or  the  courts.  Records  on  ap- 
peal have  become  more  and  more  voluminous  and  the 


THE  AMERICAN  LAWYER  29 

cost  of  litigation  has  been  unnecessarily  increased. 
Where  a  trial  is  presided  over  by  an  experienced  judge 
and  tried  by  competent  counsel,  less  than  half  a  dozen 
exceptions  to  rulings  upon  evidence  ought  ordinarily  to 
save  every  point  that  would  afford  a  reasonable  basis 
for  reversal  by  a  higher  court.  We  can  therefore  ap- 
preciate the  irony  of  the  presiding  justice  of  an  appel- 
late court  in  this  state  when  recently  he  asked  counsel 
for  the  appellant  how  it  happened  that  the  exceptions 
on  which  he  relied  numbered  only  299  instead  of  300. 

JUSTICE   AND    THE   POOR 

Cheap  and  speedy  administration  of  the  law  by 
minor  courts  in  the  large  cities  has  become  increasingly 
difficult  on  account  of  their  crowded  population.  A  re- 
cent investigation  by  the  Carnegie  Foundation  for  the 
Advancement  of  Teaching  has  disclosed  that  while  our 
substantive  law  is  "a  remarkably  satisfactory  human 
achievement,"  and  while  it  continues  to  be  "democratic 
to  the  core,"  there  has  grown  up  a  "wide  disparity 
between  the  ability  of  the  richer  and  poorer  classes  to 
utilize"  its  machinery.  This  has  not  resulted  from 
neglect  of  legislatures  to  pass  adequate  laws,  or 
through  bias  or  favor  of  the  courts,  or  through  corrup- 
tion ;  nor  is  it  attributable  to  any  neglect  or  deficiency 
of  the  bar.  It  has  been  produced  almost  entirely  by 
the  extraordinary  increase  within  a  comparatively 
brief  period  of  our  urban  population  through  immigra- 
tion. The  investigation  of  the  Carnegie  Foundation 
was  made  by  a  member  of  the  Boston  bar.  His  report 
contains  much  useful  material.  But  certain  general- 
izations and  a  few  striking,  though  hardly  typical,  in- 
stances of  delay  and  expense  in  the  courts  have  unfor- 
tunately furnished  material  which  is  being  used  by 
radicals  to  aid  them  in  their  attacks  upon  our  institu- 


30  PAPERS  AND  ADDRESSES 

tions,  and  has  evoked  from  the  sensational  press  un- 
favorable comments  unjustified  by  the  facts  set  forth 
in  the  report.  For  an  analysis  of  its  contents  shows 
that  through  the  instrumentality  of  small  claims  courts, 
of  conciliation  courts  and  conciliation  in  general,  of 
arbitration  and  other  such  instrumentalities,  of  domes- 
tic relations  courts,  of  administrative  tribunals  and 
officials,  of  defenders  in  criminal  cases,  and  of  legal  aid 
organizations,  there  has  been  substantial  progress  in 
eliminating  both  delay  and  excessive  cost  in  the  prose- 
cution of  claims  for  wages,  for  personal  injuries,  for 
small  debts  such  as  for  rent,  groceries  and  loans,  or 
those  arising  out  of  chattel  mortgages  and  assignments 
of  wages,  and  in  the  settlement  of  domestic  difficulties 
of  all  kinds. 

The  improvement  indicated  in  all  of  these  matters, 
instead  of  giving  ground  for  criticism,  affords  gratify- 
ing evidence  of  the  capacity  of  the  American  people  for 
correcting  deficiencies  in  their  governmental  institu- 
tions. 

HOMICIDE  AND  ITS  PUNISHMENT 

Passing  from  the  subject  of  the  protection  of  the 
rights  of  the  individual,  I  invite  your  attention  to  a 
matter  affecting  public  order.  I  refer  to  the  alarming 
increase  of  the  crime  of  homicide  and  the  small  per- 
centage of  the  convictions  for  its  commission.  Al- 
though specialists  and  publicists  have  commented  on 
this  situation,  public  opinion  has  remained  indifferent. 

Figures  compiled  by  Frederick  L.  Hoffman,  Vice- 
President  and  Statistician  of  the  Prudential  Insurance 
Company  of  America,  show  startling  results  as  to 
homicides.  (Homicide  Record  of  American  Cities  for 
1914,  The  Spectator,  December  23,  1915.)  In  thirty  of 
the  larger  cities  of  the  country,  during  ten  years  from 


THE  AMERICAN  LAWYER  31 

1895  to  1904,  there  were  5,927  homicides;  that  is,  at  a 
rate  of  5  to  each  100,000  of  the  population,  and  in  the 
succeeding  ten  years  ending  with  1914  the  number  had 
increased  to  12,742,  or  at  a  rate  of  8.1  per  100,000. 
During  the  same  period,  for  100  homicides  in  this 
country,  there  were  13  in  England  and  Wales,  30  in 
Australia,  31  in  Prussia,  and  56  in  Italy.  After  mak- 
ing allowance  for  errors,  due  to  varying  methods  of 
death  registration,  death  certification,  etc.,  there  still 
remains  a  startling  contrast  between  this  country  and 
other  countries  in  the  matter  of  the  crime  of  homicide. 
Since  1914,  the  homicides  in  this  country  have  been 
slightly  in  excess  of  the  average  for  the  preceding  ten- 
year  period. 

Mr.  Moorfield  Storey,  speaking  on  the  reform  of 
legal  procedure,  and  quoting  President  Andrew  D. 
White,  says: 

"The  murder  rate  in  the  United  States  is  from  ten  to 
twenty  times  greater  than  the  murder  rate  of  the  British 
Empire  and  other  Northwestern  European  countries." 

And  what  is  the  record  for  the  punishment  of  the 
crime  of  homicide? 

Records  published  by  the  Chicago  Tribune  at  the  end 
of  each  year  show  that  between  1884  and  1908,  there 
had  been  131,951  homicides  and  2,286  executions.  In 
1885,  the  number  of  homicides  had  been  1,808  and  the 
executions  108,  while  in  1904,  although  the  homicides 
had  increased  almost  fourfold  to  8,482,  the  executions 
had  remained  almost  stationary,  at  116. 

The  following  table  shows  the  homicides  and  execu- 
tions for  the  years  from  1912  to  1918,  both  inclusive: 

Year 

1912 

1913 


)micides 

Executions 

9,152 

145 

8,902 

88 

32  PAPERS  AND  ADDRESSES 

Year  Homicides  Executions 

1914 8,251  74 

1915 9,230  119 

1916 9,850  106 

1917 9,180  70 

1918 8,850  71 

The  comparison  of  these  figures  with  the  official 
figures  in  England  and  Canada  shows  a  startling  con- 
trast. 

In  1913,  in  England  and  Wales,  314  persons  were 
tried  for  murder  and  homicides,  and  there  were  91 
convictions.  In  1914,  117  persons  were  brought  to 
trial  for  manslaughter,  and  48  were  convicted.  In 
Canada,  in  1913,  of  55  persons  charged  with  murder 
23  were  convicted,  and  in  1914,  of  62  persons  charged 
with  the  same  offense  27  were  convicted. 

Even  making  due  allowance  for  imperfect  records, 
varying  classifications  of  the  degree  of  the  crime  and 
differing  methods  of  keeping  records,  the  figures  show 
what  is  measurably  near  a  scandalous  condition  in  the 
administration  of  criminal  justice. 

SUGGESTED  REMEDIES 

Individual  effort  in  making  an  investigation  of  the 
facts,  or  in  suggesting  remedies,  cannot  amount  to 
much.  Without  adequate  judicial  statistics,  there  can 
be  no  thorough  and  scientific  consideration  of  the  sub- 
ject, no  certainty  as  to  the  extent  of  our  deficiencies, 
and  no  intelligent  judgment  as  to  their  cause ;  and  only 
by  results  disclosed  by  such  statistics  will  comparisons 
be  possible  which  will  tend  to  arouse  public  opinion  to 
greater  effort  in  those  communities  showing  bad  com- 
parative results. 


THE  AMERICAN  LAWYER  33 


THE   SELECTION   OF   JURIES 

No  process  in  the  administration  of  criminal  justice 
in  this  country  can  be  more  justly  condemned  than  the 
selection  of  jurors  in  criminal  cases.  In  this  state 
the  courts  are  not  free  from  just  criticism  for  the 
strictness  with  which  they  have  interpreted  the  law 
upon  the  subject,  nor  can  the  legislature  be  acquitted 
of  responsibility  for  failing  to  change  the  prevailing 
practice,  which  ought  not  to  be  tolerated  in  any  civil- 
ized community.  The  highest  court  of  the  state  could 
probably  ameliorate  the  situation  by  not  adhering  too 
closely  to  a  technical  interpretation  of  the  law.  Even 
under  existing  rulings,  an  experienced,  competent, 
forceful  and  courageous  trial  judge  may  do  much  to 
prevent  such  exhibitions  as  we  sometimes  have.  But  if 
relief  cannot  be  thus  obtained,  some  other  way  should 
be  found  to  reform  a  procedure  which  in  this  city 
tolerated  for  three  weeks  the  tedious  process  of  select- 
ing a  jury  to  try  Harry  Thaw,  and  lent  itself  in  Chicago 
to  the  still  worse  scandal  of  permitting  a  delay  of  three 
months  in  the  selection  of  a  jury  to  try  Cornelius  Shea, 
after  more  than  six  thousand  citizens  had  been  exam- 
ined as  to  their  qualifications. 

THE    FUNCTION    OF    THE    TRIAL    JUDGE 

A  more  decisive  participation  by  the  judge  in  direct- 
ing the  thoughts  of  the  trial  jurors  would  undoubtedly 
be  advantageous  in  criminal  as  well  as  in  civil  trials. 
In  most  jurisdictions  in  this  country  a  judge  must 
adopt  an  almost  timorous  attitude.  If  he  incautiously 
betrays  his  opinion  upon  any  disputed  question  of  fact, 
he  is  in  danger  of  committing  reversible  error. 

Too  rigorous  restrictions  reduce  the  judge  to  the 
role  of  a  mere  moderator,  and  greatly  impair  his  use- 


34  PAPERS  AND  ADDRESSES 

fulness ;  and  the  charge  pronounced  by  counsel  on  both 
sides  as  impartial,  too  frequently  presents  itself  to  the 
jury  as  an  entirely  colorless  essay  upon  an  erudite  and 
little  understood  subject.  But  juries  need  more  as- 
sistance than  is  afforded  by  the  more  or  less  conven- 
tional formulation  in  technical  language  of  rules  of  law 
by  which  they  are  to  be  governed.  Why  not  permit  a 
judge  to  state  his  own  opinion  as  to  facts,  as  is  fre- 
quently done  in  English  courts  ?  The  principal  reason 
urged  against  this  is  the  apprehension,  which  experi- 
ence in  England  and  in  some  jurisdictions  in  this 
country  shows  to  be  groundless,  that  the  customary 
warning  to  the  jury  that  they  are  not  to  permit  the 
judge 's  opinion  of  the  facts  to  weigh  against  their  own 
judgment,  will,  through  some  fancied  influence  of  the 
judicial  office,  be  disregarded.  The  reason  does  little 
credit  to  the  character  and  intelligence  of  the  Ameri- 
can juryman,  and,  carried  a  little  further  through  the 
paths  of  logic,  would  lead  to  the  abolition  of  the  jury 
system  itself. 

Jurors  are  human.  The  consciousness  that  they 
constitute  an  independent  agency  in  the  judicial  system 
will  be  far  more  likely  to  make  them  resent  encroach- 
ment upon  their  prerogatives  than  to  lead  them  com- 
plaisantly  to  yield  to  undue  judicial  suggestion.  We 
all  know  how  frequently  a  charge  framed  to  conform  to 
the  rules  of  law,  but  designed  to  favor  one  side  or  the 
other,  miscarries,  to  the  chagrin  of  an  over-officious 
judge ;  and  in  England,  the  danger  that  the  perversity 
of  a  jury  may  defeat  the  ends  of  justice  constantly 
deters  judges  from  a  too  great  indulgence  in  the  ex- 
pression of  their  opinion  on  the  facts. 


THE  AMERICAN  LAWYER  35 

THE  AMERICAN  LAWYER  AS  A   CITIZEN 

The  American  lawyer  has  a  responsibility  quite  dif- 
ferent from  his  colleagues  at  the  bar  of  other  countries. 
This  difference  springs  from  the  peculiar  character  of 
our  judiciary  department  as  an  independent  organ  of 
government,  whose  decisions,  though  not  based  on 
political  considerations,  vitally  affect  political  meas- 
ures. In  no  other  country  in  the  world — certainly  not 
in  the  older  ones — does  the  judiciary  perform  a  func- 
tion comparable  to  this  in  its  far-reaching  effect  upon 
the  stability  and  development  of  the  institutions  of 
government.  Even  in  England,  the  constitutionality 
of  an  act  of  the  Imperial  Parliament  may  not  be  ques- 
tioned by  the  courts,  and  the  dogma  of  the  inviolability 
of  contracts,  which  has  come  to  be  such  an  important 
part  of  our  system  of  jurisprudence,  does  not  exist. 
The  safeguarding  of  the  political  structure  of  the  Eng- 
lish Government  is  not  a  judicial  function,  and  its 
courts  are  rarely  called  upon  to  restrain  the  govern- 
mental activities  of  the  outlying  units  of  the  Empire. 
By  the  provisions  of  the  Federal  Constitution,  how- 
ever, a  great  charter  of  individual  rights  has  been 
erected,  enforcible  in  the  courts,  which  protects  the 
individual  against  the  undue  exercise  of  legislative  or 
executive  power. 

The  possession  of  such  extraordinary  judicial  power 
has  elevated  our  courts  into  a  most  important  agency 
to  prevent  the  impulsive  assertion  by  the  people  of 
political  power.  While  the  imagination  of  the  framers 
of  our  Constitution  probably  did  not  picture  the  extent 
to  which  the  character  and  permanence  of  our  govern- 
ment was  to  become  dependent  upon  interpretations 
by  the  Supreme  Court  during  the  term  of  Chief  Justice 
Marshall,  and  while  the  people  of  the  United  States 


36  PAPERS  AND  ADDRESSES 

could  have  bad  little  conception  when  they  adopted 
the  Fourteenth  Amendment  that  it  would  be  resorted 
to,  as  it  has,  for  the  protection  of  individual  and  cor- 
porate property  rights  and  personal  privileges  and  im- 
munities, there  has,  nevertheless,  in  spite  of  periodical 
but  futile  protests  of  certain  schools  of  publicists,  been 
general  acquiescence  in  the  performance  by  the  judi- 
ciary of  the  function  which  it  has  assumed ;  and  the  ac- 
ceptance by  the  people  of  the  judicial  power  as  an  in- 
strumentality for  maintaining  the  equilibrium  of  our 
Federal  system  is  one  of  the  most  significant  evidences 
of  the  genius  of  the  American  people  for  government. 
The  part  played  by  the  courts  in  the  development  of 
our  political  history  has  been  very  happily  expressed 
by  President  Hadley  in  the  following  words: 

"But  I  think  that  most  intelligent  men  who  know  the 
history  of  the  country  will  say  that  our  courts  have  been  the 
real  bulwarks  of  American  liberty;  and  that  while  Hamilton 
and  his  associates  would  be  somewhat  disappointed  in  the 
working  of  the  machinery  of  legislation  and  administration, 
if  they  could  see  it  in  its  present  shape,  they  would  be  filled 
with  admiration  at  the  work  which  has  been  accomplished  by 
the  judiciary.  I  believe  it  to  be  the  judgment  of  sober- 
minded  men  that  the  courts  have  furnished  the  agency  which 
has  guarded  us  against  partisan  excesses,  and  have  saved  the 
American  Republic  from  the  necessity  of  repeating  the  suc- 
cessive revolutionary  experiences  which  France  underwent 
before  she  could  attain  to  stable  democracy.  ..." 

No  foreign  observer  has  commented  upon  the  work- 
ings of  our  government  with  so  much  penetration  as 
James  Brvce  in  "The  American  Commonwealth";  and 
upon  the  powers  of  the  federal  judiciary,  he  says : 

"If  they  had  been  left  to  be  settled  by  Congress  itself,  an 
interested  party,  or  by  any  dealings  between  Congress  and 


THE  AMERICAN  LAWYER  37 

the  state  legislatures,  the  dangers  of  a  conflict  would  have 
been  extreme,  and  instead  of  one  civil  war  there  might  have 
been  several.  But  the  universal  respect  felt  for  the  Constitu- 
tion, a  respect  which  grows  the  longer  it  stands,  has  disposed 
men  to  defer  to  any  decision  which  seems  honestly  and  logi- 
cally to  unfold  the  meaning  of  its  terms.  In  obeying  such  a 
decision  they  are  obeying  not  the  judges,  but  the  people  who 
enacted  the  Constitution." 

ATTACKS  ON  THE  JUDICIARY 

This  peculiar  judicial  power  and  the  unique  body  of 
jurisprudence  which  has  been  built  upon  it  are  con- 
stantly inviting  attacks  when  they  impede  the  speedy 
solution  of  pressing  and  important  questions,  and  par- 
ticularly those  relating  to  economic  and  industrial  mat- 
ters. These  attacks  are  symptomatic  of  the  human 
tendency  to  resist  measures  designed  to  restrain  free- 
dom of  individual  action.  A  few  years  ago  they  took 
form  in  the  proposed  Recall  of  Judges  and  Recall  of 
Decisions ;  and  more  recently  there  has  been  a  recrud- 
escence of  the  same  idea  in  the  formal  advocacy  by  the 
most  powerful  labor  organization  in  this  country  of 
the  abolition  of  the  power  of  the  courts  to  declare  acts 
of  Congress  void.  About  a  month  ago  representatives 
of  119  national  and  international  unions,  including  the 
four  railroad  brotherhoods,  summoned  to  meet  by  the 
President  of  the  American  Federation  of  Labor,  issued 
a  so-called  Bill  of  Rights,  in  which,  among  other  at- 
tacks upon  the  courts,  they  said : 

"We  assert  that  there  cannot  be  found  in  the  Constitution 
of  the  United  States  or  in  the  discussions  of  the  Congress 
which  drafted  the  Constitution  any  authority  for  the  Federal 
courts  of  our  country  to  declare  unconstitutional  any  act 
passed  by  Congress.  We  call  upon  the  people  of  our  country 
to  demand  that  the  Congress  of  the  United  States  shall  take 


38  PAPERS  AND  ADDRESSES 

action  for  the  purpose  of  preventing  the  Federal  courts  from 
continuing  the  usurpation  of  such  authority." 

THE  HISTORICAL  ARGUMENT 

The  historical  reference  in  the  above  extract  is  in- 
accurate. The  convention  which  drafted  the  Constitu- 
tion was  aware  that  from  the  division  of  power  among 
the  three  departments  of  government  it  resulted  that, 
if  Congress  should  pass  acts  in  violation  of  the  limita- 
tions of  the  Constitution,  the  Supreme  Court  would 
have  the  power  to  declare  them  void.  Indeed,  Madi- 
son, to  whom  more  than  to  any  other  member  of  the 
Convention  is  to  be  assigned  the  credit  for  framing  the 
Constitution,  went  so  far  as  to  seek  to  have  the 
Supreme  Court  share  with  the  President  the  veto  power 
ultimately  vested  in  the  Executive  alone.  In  the  de- 
bate which  the  proposal  evoked  Gouverneur  Morris 
said  that  the  court  should  not  "be  bound  to  say  that  a 
direct  violation  of  the  Constitution  was  law";  and  he 
continued:  "A  control  over  the  legislature  might 
have  its  inconveniences;  but  view  the  danger  on  the 
other  side.  The  most  virtuous  citizens  will  often,  as 
members  of  a  legislative  body,  concur  in  measures 
which  afterwards,  in  their  private  capacity,  they  will 
be  ashamed  of.  Encroachment  of  the  popular  branch 
of  the  government  ought  to  be  guarded  against." 

When  the  Constitution  in  1788  came  before  the  Vir- 
ginia Convention  for  ratification,  Madison,  speaking  of 
the  judiciary  power,  said:  "It  may  be  a  misfortune 
that,  in  organizing  any  government,  the  explication  of 
its  authority  should  be  left  to  any  of  its  coordinate 
branches.  There  is  no  example  in  any  country  where 
it  is  otherwise.  There  is  a  new  policy  in  submitting  it 
to  the  judiciary  of  the  United  States.  .  .  .  With  re- 
spect to  the  laws  of  the  Union,  it  is  so  necessary  and 


THE  AMERICAN  LAWYER  39 

expedient  that  the  judicial  power  should  correspond 
with  the  legislative,  that  it  has  not  been  objected  to." 
And  he  says  in  another  connection  that  "their  laws 
(i.e.  of  Congress)  in  opposition  to  the  Constitution 
would  be  void.  .  .  .  The  Federal  judges,  if  they  spoke 
the  sentiments  of  independent  men,  would  declare  their 
prohibition  nugatory  and  void." 

John  Marshall  in  the  same  Convention,  anticipating 
the  long  line  of  decisions  made  by  him  many  years 
afterward  as  Chief  Justice,  speaking  of  the  power  of 
the  federal  government  to  make  laws  said :  ' '  Can  they 
go  beyond  the  delegated  powers?  If  they  were  to 
make  a  law  not  warranted  by  any  of  the  powers  enum- 
erated, it  would  be  considered  by  the  judges  as  an 
infringement  of  the  Constitution  which  they  are  to 
guard.  They  would  not  consider  such  a  law  as  coming 
under  their  jurisdiction.     They  would  declare  it  void. ' ' 

THE  FUNCTION  OF  THE  FEDERAL  JUDICIARY 

I  but  repeat  arguments  which  have  become  classic, 
when  I  say  that  the  interpretation  of  written  law,  and 
a  fortiori  of  a  written  constitution,  is  a  judicial  func- 
tion. It  calls  for  the  critical  faculty  to  determine  the 
intention  of  the  law-makers  from  the  instrument  it- 
self. Both  Hamilton,  in  the  Federalist,  and  Marshall, 
in  Marbury  v.  Madison,  agreed  in  the  cogent  statement 
that  where  two  acts  of  the  people  were  presented,  one 
the  Constitution  and  one  a  legislative  act,  the  court 
must  either  decide  ' '  conformably  to  the  law,  disregard- 
ing the  Constitution,  or  conformably  to  the  Constitu- 
tion, disregarding  the  law — the  court  must  determine 
which  of  these  conflicting  rules  governs  the  case." 
And  the  logic  of  that  position  remains  conclusive  to- 
day. It  merely  amounts  to  this :  that  the  intention  of 
the  people  as  expressed  in  the  fundamental  law  is  to 


40  PAPERS  AND  ADDRESSES 

be  enforced  rather  than  the  intention  of  a  Congress 
elected  to  enact  current  legislation  during  its  two  years 
of  office.  Hamilton  adds  that  if  the  legislature  should 
make  bad  laws,  "the  same  spirit  which  had  operated 
in  making  them  would  be  too  apt  in  interpreting  them ; 
still  less  could  it  be  expected  that  men  who  had  in- 
fringed the  Constitution  in  the  character  of  legislators 
would  be  disposed  to  repair  the  breach  in  the  character 
of  judges." 

Even  the  most  extreme  opponents  of  the  federal 
judiciary  system  have  never  seriously  contended  that 
the  power  of  the  Supreme  Court  to  declare  state  laws 
void,  as  contravening  the  Constitution,  was  not  neces- 
sary for  the  preservation  of  the  Union.  For  the  exer- 
cise of  that  power  the  Constitution  created  a  tribunal 
differing  from  any  theretofore  existing,  whose  powers, 
though  judicially  exercised,  were  to  extend  to  matters 
which  were  political  in  that  they  would  necessarily  in- 
volve claims  by  the  several  states  that  their  acts  were 
within  the  sovereign  powers  reserved  to  them.  The 
question  whether  an  act  of  Congress  encroaches  upon 
such  sovereign  powers  involves  precisely  the  same  kind 
of  a  political  question,  for,  from  the  standpoint  of  main- 
taining the  Union  in  accordance  with  the  constitutional 
compact,  it  is  just  as  important  to  restrain  Congress 
from  encroaching  upon  the  powers  reserved  to  the 
states  as  it  is  to  keep  the  states  from  exercising  any 
of  the  enumerated  powers  granted  to  the  federal  legis- 
lature. It  was  necessary  to  provide,  because  it  was  an 
affirmative  grant  of  power  affecting  the  sovereignty  of 
the  states,  that  the  "judges  in  every  state"  should 
be  bound  by  the  Constitution  and  laws  of  the  United 
States,  "anything  in  the  Constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding"  (Art.  6,  sec.  2) ; 
but  it  was  not  necessary  to  make  express  provision 


THE  AMERICAN  LAWYER  41 

with  reference  to  the  acts  of  Congress,  for  the  power  of 
the  court  was  clearly  implied  by  the  provision  that  the 
Constitution  was  to  be  the  "supreme  law  of  the  land" 
and  the  judicial  power  was  to  extend  "to  all  cases  .  .  . 
arising  under  this  Constitution"  and  the  laws  of  the 
United  States. 

It  has  been  frequently  pointed  out  by  those  criti- 
cizing our  present  system  that  under  the  English  sys- 
tem the  Imperial  Parliament  is  the  sole  judge  of  the 
constitutionality  of  its  legislative  acts.  But  the  gov- 
ernment of  Great  Britain  presents  no  questions  of  the 
conflicting  sovereignty  of  its  several  units.  Moreover, 
the  British  Constitution  is  a  document  having  its  sanc- 
tion solely  in  measures  enacted  by  Parliament  itself. 
There  is  no  other  instrumentality  through  which  the 
people  can  express  themselves.  If  they  have  the  power 
to  make  the  Constitution,  they  also  have  the  power  in 
Parliament  to  unmake  it  by  interpretation  or  other- 
wise. But  Parliament  does  not  exercise  any  such 
power  by  overruling  in  a  particular  case  a  judicial  de- 
cision, however  much  it  may  change  the  Constitution  in 
its  application  to  future  cases.  The  proposition  of  the 
labor  organizations,  however,  is  that  Congress  shall 
have  the  judicial  power  to  reverse  the  decision  of  the 
Supreme  Court  in  a  particular  case,  with  no  appeal 
from  the  decision,  however  erroneous  as  a  matter  of 
law  it  may  be. 

Ours  was  the  first  written  Constitution  attempting  to 
limit  the  powers  of  the  several  organs  of  a  federal 
system  of  government,  and  of  the  sovereign  units  of 
the  confederation.  The  powers  enumerated  as  vested 
in  Congress  were  far  from  converting  the  system  into 
a  consolidated,  centralized  government.  They  prin- 
cipally related  to  matters  necessary  to  confer  sover- 
eign powers  so  far  as  other  nations  were  concerned, 


42  PAPERS  AND  ADDRESSES 

and  those  in  respect  of  which  uniformity  of  adminis- 
tration was  deemed  necessary  for  national  coherence. 
All  powers  granted  to  Congress  were,  of  course,  in 
derogation  of  the  sovereign  powers  of  the  states. 
Thus  questions  of  the  constitutionality  not  only  of 
state  laws  but  also  of  federal  laws  involve  a  conflict 
between  state  and  federal  sovereignties.  If  to  Con- 
gress had  been  committed  the  power  to  determine  the 
constitutionality  of  its  own  acts,  it  could  by  a  judicial 
act  deprive  a  state  of  its  reserved  sovereign  power  and 
gradually  completely  consolidate  the  federal  govern- 
ment. Such  a  possibility  was  perceived  to  open  up  a 
grave  menace  and  the  necessity  for  having  an  impartial 
judicial  body  to  remove  it  became  so  manifest  that,  in 
spite  of  the  multitude  of  other  objections  urged  to  the 
Constitution,  there  was  no  serious  objection  made  to 
that. 

The  attitude  of  the  Federation  of  Labor  is  probably 
due  to  dissatisfaction  with  such  decisions  as  that  in 
the  Child  Labor  case.  But  however  unsound  such  de- 
cisions may  have  been,  no  menace  to  our  institutions 
has  resulted  or  can  result ;  for  the  court  is  powerless  to 
enforce  its  decrees  against  the  opposition  of  the  execu- 
tive and  legislative  departments,  and  the  genius  of 
the  American  people  can  always  find  some  way  for 
accomplishing  its  will  within  the  bounds  of  legality. 
If  the  recent  effort  of  Congress  through  the  taxing 
power  has  failed  to  accomplish  the  beneficent  purpose 
of  the  Child  Labor  Law,  there  will  remain  the  expedient 
of  amending  the  Constitution ;  and  the  power  to  resort 
to  that  remedy  is  a  complete  answer  to  all  objections 
to  the  power  of  the  Supreme  Court  to  declare  acts  of 
Congress  void. 

The  Supreme  Court  has  nullified  few  important  acts 
of  Congress.    There  has  never  been  an  habitual  or 


THE  AMERICAN  LAWYER  43 

flagrant  abuse  of  power.  But  there  is  little  doubt  that 
the  existence  of  the  power  and  its  occasional  exercise 
have  had  a  very  salutary  effect  in  maintaining  the 
balance  among  the  federal  departments,  and  between 
the  state  and  federal  governments,  thus  giving  stabil- 
ity to  the  entire  governmental  system.  For  over  130 
years,  the  government  has  existed  without  revolution- 
ary or  even  radical  changes  in  its  constitutional  form. 
It  has  withstood  the  strain  of  foreign  wars  and  one 
Civil  War  of  the  most  devastating  character.  The 
states  have  increased  from  thirteen  to  forty-eight  and 
their  population  from  three  millions  to  one  hundred 
millions,  and  the  government  has  had  to  extend  the 
field  for  the  exercise  of  its  powers  over  a  vastly  in- 
creased domain  and  a  constantly  broadening  field  of 
activities.  Yet  the  federal  system  remains  more 
stable  than  ever  before,  and  the  rights  of  the  individual, 
whether  he  be  of  the  majority  or  of  the  minority,  con- 
tinue to  be  effectively  safeguarded.  History  does  not 
record  an  instance  of  such  stability  in  any  other  popu- 
lar government,  certainly  not  in  modern  times.  And 
among  the  chief  reasons  for  this  is  the  fact  that  the 
people  have  been  willing  to  impose  upon  themselves, 
through  the  judiciary,  checks  against  the  usurpation 
of  powers  withheld  under  the  Constitution. 

The  burden  rests  heavily  on  those  who  would  disturb 
institutions  which  have  thus  by  time  and  experience 
proved  their  value.  Especially  must  they  show  why 
it  is  not  wiser  to  make  fundamental  changes  by  amend- 
ing the  Constitution  itself.  Let  them  tell  the  country 
why  they  are  unwilling  to  submit  their  case  to  the 
deliberate  judgment  of  the  people.  The  amendment 
of  the  Constitution  is  not  a  complicated  process,  as 
was  demonstrated  in  the  amendment  which  validated 
the  income  tax ;  nor  does  it  involve  delay  disproportion- 


44  PAPERS  AND  ADDRESSES 

ate  to  the  importance  that  should  be  attached  to  such 
a  fundamental  step.  And  if  there  be  a  grievance  grow- 
ing out  of  a  decision  of  the  Supreme  Court,  that  is  the 
way  to  correct  it,  rather  than  to  overthrow  the  author- 
ity of  a  court  whose  decisions  have  been  generally 
regarded  with  such  respect  for  their  fairness  and  wis- 
dom that  it  ranks  as  one  of  the  greatest  judicial  tri- 
bunals in  history. 


THE    DUTY    OF    THE   AMERICAN    LAWYER 

Many  other  fundamental  questions  press  upon  our 
country,  and  we  lawyers  should  not  be  overapprehen- 
sive  lest  in  giving  organized  expression  to  considered 
views  upon  them  we  shall  incur  danger  of  partisan 
controversy.  It  is  as  true  now  as  it  was  when  in  1830 
de  Tocqueville  said  that  ' '  scarcely  any  question  arises 
in  the  United  States  which  does  not  become  sooner  or 
later  a  subject  of  judicial  debate."  If  that  be  so,  no 
part  of  the  community  can  more  fitly  engage  in  contro- 
versies involving  fundamental  questions  of  government 
than  lawyers.  And  if  associations  of  the  bar  refrain 
from  the  discussion  of  questions  which  permanently 
affect  the  safeguards  of  our  Constitution,  because  they 
fear  to  excite  partisan  controversy,  we  may  well  con- 
sider whether  it  is  not  time  to  reconstitute  them  upon 
some  other  basis. 

It  has  never  before  been  so  necessary  for  lawyers  to 
think  in  terms  of  statesmanship  and  to  stimulate  simi- 
lar habits  of  thought  in  others.  In  adjusting  itself  to 
peace  conditions,  the  country  will,  as  it  never  has  be- 
fore, concern  itself  with  international  relations,  and  it 
must  at  the  same  time  continue  to  guard  at  home 
against  any  impairment  of  the  liberty  of  the  individual, 
and  of  the  rights  of  the  minority.     The  relations  be- 


THE  AMERICAN  LAWYER  45 

tween  the  government  and  the  transportation  compan- 
ies must  be  adjusted;  the  entire  subject  of  combinations 
in  restraint  of  trade  must  be  reconsidered ;  a  fiscal  pol- 
icy adapted  to  the  enormous  financial  burden  cast  upon 
us  by  the  war  must  be  adopted ;  the  rights  of  labor  and 
those  of  capital  must  be  brought  into  stable  equilib- 
rium; our  institutions  must  be  guarded  against  the 
menace  of  the  most  modern  form  of  communism;  and 
the  authority  of  our  courts  must  be  preserved  against 
the  invasion  of  novel  and  destructive  theories,  partic- 
ularly those  which  seek  to  impair  the  steadying  influ- 
ence of  the  judiciary.  We  must  solve  the  questions  of 
international  law  which  will  become  incident  to  the  pro- 
visions of  any  peace  treaty  that  may  be  made.  And  we 
cannot  abate  our  vigilance  in  seeing  to  it  that  funda- 
mental rights  are  not  submerged  by  great  combinations 
of  capital,  and  that,  on  the  other  hand,  no  class  in  the 
community,  however  powerful,  shall  set  at  naught  the 
rights  and  convenience  of  the  general  public,  or  unduly 
interfere  with  its  pursuit  of  happiness. 

None  of  these  great  questions  can  be  solved  without 
constant  reference  to  vital  principles  of  constitutional 
law.  Lawyers  and  associations  of  the  bar  better  than 
any  other  class  in  the  community  can  contribute  to 
their  solution;  and  that  fact  carries  with  it  a  corre- 
sponding duty.  President  Wilson,  then  Governor  of 
New  Jersey,  in  an  address  to  the  Kentucky  Bar  Asso- 
ciation in  1911,  used  these  words: 

'For  the  notable,  I  had  almost  said  fundamental,  circum- 
stance of  our  political  life  is  that  our  courts  are,  under  our 
constitutional  system,  the  means  of  our  political  development. 
Every  change  in  our  law,  every  modification  of  political 
practice,  must  sooner  or  later  pass  under  their  scrutiny.  We 
can  go  only  as  fast  as  the  legal  habit  of  mind  of  our  lawyers 
will  permit.     Our  politics  are  bound  up  in  the  mental  char- 


46  PAPERS  AND  ADDRESSES 

acter  and  attitude  and  in  the  intellectual  vigor  and  vision  of 
our  lawyers.  Ours  is  so  intensely  and  characteristically  a 
legal  polity  that  our  politics  depend  upon  our  lawyers.  They 
are  the  ultimate  instruments  of  our  life." 

Just  seventy-five  years  ago,  Rufus  Choate,  in  an 
address  delivered  to  the  Harvard  Law  School,  ex- 
pressed the  same  idea,  saying  that  it  had  been  the 
office  of  the  American  lawyer  of  his  day  to  interpret, 
administer  and  maintain  the  constitutions  of  the  coun- 
try, and  that  they  had  thereby,  ' '  shared  in  the  dignity 
of  founders  of  states,  of  restorers  of  states,  of  preserv- 
ers of  states.  I  said  and  I  repeat  that  while  lawyers, 
and  because  we  are  lawyers,  we  are  statesmen.  We 
are  by  profession  statesmen.  And  who  may  measure 
the  value  of  this  department  of  public  duty  f ' ' 

While  James  Bryce  has  made  a  similar  observation, 
he  has  also  pointed  out  the  fact,  which  it  would  be  futile 
to  deny,  that  while  the  influence  of  lawyers  still  remains 
potent  in  legislative  bodies  and  in  public  office,  "  taking 
a  general  survey  of  the  facts  of  to-day  as  compared 
with  those  of  sixty  years  ago,  it  is  clear  that  the  bar 
counts  for  less  as  a  guiding  and  restraining  power 
tempering  the  crudity  or  haste  of  democracy  by  its 
attachment  to  rule  and  precedent  than  it  did  then. ' ' 

With  the  more  general  diffusion  of  opportunities  for 
education  and  the  increase  of  professional  and  commer- 
cial specialization,  members  of  the  legal  profession 
no  longer  enjoy  to  an  extent  as  great  as  they  did  for- 
merly, intellectual  and  social  leadership.  The  prestige 
of  lawyers  (and  the  same  may  be  said  of  other  profes- 
sions) has  suffered  in  influence  through  the  increasing 
importance  of  the  gigantic  commercial  and  financial 
undertakings  of  to-day,  whose  originators  and  mana- 
gers must  necessarily  possess  qualities,  intellectual 
and    otherwise,    which    equip    them    for    leadership. 


THE  AMERICAN  LAWYER  47 

Practical  developments  in  science  and  the  arts  have  so 
contributed  to  the  comfort,  convenience  and  health  of 
mankind,  that  the  chief  actors  in  these  fields  have  de- 
servedly occupied  positions  of  wide  influence. 

With  the  concentration  of  wealth  in  great  enterprises, 
the  lawyer  has  frequently  become  attached  to  particu- 
lar business  interests,  by  which  his  opinions  in  relation 
to  great  questions  of  the  day  are  affected  and  his 
freedom  in  the  performance  of  his  duties  as  a  citizen 
more  or  less  fettered.  Living  in  the  atmosphere  of 
private  interests,  such  a  lawyer  finds  it  increasingly 
difficult  to  move  out  of  the  narrow  channel  in  which  his 
employment  confines  him.  It  results  that  the  exhibi- 
tion of  courage,  initiative  and  constructive  leadership 
is  by  no  means  so  easy  or  natural  for  some  of  the  most 
competent  members  of  the  bar  as  under  the  simpler 
social  and  industrial  conditions  existing  seventy-five 
years  ago.  And  yet  now  more  even  than  then  the 
social,  industrial  and  political  questions  before  the 
people  are  intertwined  with  questions  of  constitutional 
or  international  or  municipal  law.  While  the  bar  must 
always  continue  to  be  the  great  conservative  force  in 
our  system,  we  lawyers  should  not  hesitate  to  ask  our- 
selves from  time  to  time  whether  we  have  not  become 
too  conservative ;  that  is,  whether  the  forces  of  progress 
have  not  created  such  a  transformation  in  the  body 
politic  as  to  require  us  to  become  more  aggressive  if  we 
would  play  the  part  for  which  our  training  and  our  ex- 
perience has  fitted  us. 

RESPECT    FOR    THE   LAW 

The  crowning  service  of  the  American  lawyer  is  to 
teach  respect  for  the  law  because  it  is  the  law.  Some 
student  of  our  institutions  has  said  that  the  American 
people  have  a  talent  for  legality ;  that  is,  for  adjusting 


48  PAPERS  AND  ADDRESSES 

themselves  to  the  law  as  it  is  and  not  as  it  ought  to 
be.    We  Americans,  in  the  words  of  Tennyson,  have 

' '  Some  reverence  for  the  laws  ourselves  have  made ; 
Some  patient  force  to  change  them  when  we  will ; 
Some  civic  manhood,  firm  against  the  crowd." 

The  possession  of  the  spirit  speaking  in  these  lines 
has  no  doubt  saved  the  American  people  at  critical 
junctures.     It   is   not  that  we  withhold   our  protest 
against  the  policy,  and  perhaps  against  the  wisdom 
and  justice,  of  existing  laws,  for  more  frequently  and 
more  freely  than  most  peoples  of  the  world  we  de- 
nounce   them    and    seek    their    repeal.     But    we    are 
attached  to  the  idea  that  in  the  long  run  order  will  be 
better  preserved,  a  larger  measure  of  justice  will  pre- 
vail, and  the  stability  of  our  institutions  will  more 
certainly  be  perpetuated,  if  we  accustom  ourselves  to 
accept  for  the  time  being  the  existing  law  as  our  guid- 
ing force.     It  is  this  genius  of  the  American  people 
which  has  enabled  them  to  accept  as  a  rule  of  action  a 
constitution  which  was  itself  a  compromise,  and  which 
has  worked  only  through  accommodations  suggested 
by  the  common  sense  of  the  people.    We  may  with 
some  pride  of  race  compare  this  experience  with  that 
of  the  South  and  Central  American  republics,  and  even 
of  France,  which  have  from  time  to  time  adopted  con- 
stitutions, sometimes  on  the  model  of  ours  and  no  less 
perfect  in  form,  but  which  in  many  cases  have  proved 
to  be  little  more  than  an  exhibition  of  the  imitative 
faculty  or  an  expression  of  lofty  aspiration.     With 
knowledge  and  experience  in  self-government,  however, 
the  American  people  have  known  that  no  system  could 
be   devised   which   would   be   perfect   to   meet   every 
exigency,  and  they  have  realized  that  laws,  and  even 
constitutions,  must  be  made  to  bend  to  meet  practical 


THE  AMERICAN  LAWYER  49 

situations;  but  they  have  also  known  that  if  they  did 
not  give  a  certain  deferential  adherence  to  the  law 
because  it  is  the  law,  they  would  encounter  risks,  the 
effect  of  which  could  not  be  predicted.  They  have  be- 
lieved that  a  part  of  the  self-restraint  required  for  the 
successful  working  of  a  democratic  form  of  govern- 
ment was  to  obey  an  unfit  law  so  long  as  it  was  the 
law,  to  demonstrate  its  unfitness  by  its  enforcement, 
and  then  to  repeal  it. 

We  are  now  witnessing  a  protest  on  the  part  of 
many  people  who  assert  that  the  prohibition  amend- 
ment is  not  the  expression  of  the  will  of  the  people, 
But  whether  they  be  right  or  not,  the  American  habit 
of  respecting  the  law  will  ultimately  prevail. 

I  am  not  unmindful  of  some  of  the  great  crises  of 
our  history,  where  there  have  been  fundamental  dif- 
ferences concerning  vital  questions,  such,  for  instance, 
as  those  which  arose  in  connection  with  slavery.  No 
greater  strain  could  have  been  placed  upon  the  patriot- 
ism of  any  citizen  than  that  which  weighed  upon 
Abraham  Lincoln  when  the  Supreme  Court  decided  the 
Dred  Scott  case.  With  all  the  fervor  of  his  moral 
nature  he  condemned  the  principle  underlying  the  law, 
if  it  was  as  the  Supreme  Court  interpreted  it  to  be. 
With  all  the  force  of  his  intellectual  nature  he  believed 
it  to  be  an  unsound  interpretation  of  the  Constitution. 
So  far  as  he  was  at  liberty  to  disregard  it  as  a  political 
rule,  he  adopted  every  proper  method  to  see  to  it  that 
it  should  be  corrected.  But  he  never  denied  the  bind- 
ing effect  of  the  decision.  He  met  it  by  asserting  that 
new  views  of  the  question  should  be  presented  to  the 
Supreme  Court,  in  order  that  that  tribunal  might  be 
induced  to  put  a  different  interpretation  upon  the  Con- 
stitution, or  he  urged  that  the  Constitution  be  amended, 
saying  that  by  so  doing  "I  disturb  no  rights  of  prop- 


50  PAPERS  AND  ADDRESSES 

erty;  create  no  disorder;  excite  no  mobs."    And  he 
added : 

"We  believe  ...  in  obedience  to  and  respect  for  the 
judicial  department  of  the  government.  We  think  its  de- 
cisions on  constitutional  questions  when  fully  settled  should 
control  not  only  the  particular  cases  decided  but  the  general 
policy  of  the  country,  subject  to  be  disturbed  only  by  amend- 
ments of  the  Constitution  as  provided  in  that  instrument 
itself.     More  than  this  would  be  revolution. ' ' 


THE  BAR  IN  THE  WAR—ITS  WAR  COMMIT- 
TEES AND  ITS  PARTICIPATION  IN  THE 
ENFORCEMENT  OF  THE  SELECTIVE  SER- 
VICE LAW  AND  REGULATIONS 


Ill 

THE  BAR  IN  THE  WAR— ITS  WAR  COMMIT- 
TEES AND  ITS  PARTICIPATION  IN  THE 
ENFORCEMENT  OF  THE  SELECTIVE  SER- 
VICE LAW  AND  REGULATIONS  ' 

When  this  country  became  involved  in  the  Euro- 
pean War,  bar  associations  throughout  the  country 
formed  committees  to  organize  war  work  in  which 
members  of  the  bar  might  be  useful.  In  the  city  of 
New  York,  the  Association  of  the  Bar  of  the  City  of 
New  York,  the  New  York  County  Lawyers'  Associa- 
tion, the  Brooklyn  Bar  Association,  the  Association  of 
the  Bar  of  the  County  of  the  Bronx,  the  Queens  County 
Bar  Association,  the  Richmond  County  Bar  Associa- 
tion and  the  Lawyers'  Club,  each  appointed  a  War 
Committee.  These  committees  announced  that  their 
purpose  was  to  consider  how  members  of  the  associa- 
tions they  represented  might  render  assistance  to  the 
government,  to  the  state,  and  to  the  city,  and  might 
also  extend  aid  to  members  of  the  legal  profession 
serving  with  the  land  and  naval  forces  of  the  country, 
and  their  dependents.  For  the  purpose  of  avoiding 
duplication  of  labor  and  expense  and  of  securing  effi- 
ciency, these  committees  were  on  May  2,  1917,  amal- 
gamated and  there  resulted  the  War  Committee  of 
the  Bar  of  the  City  of  New  York  which  has  since,  in 
a  variety  of  ways,  made  itself  useful  in  connection 
with  war  work. 

The  War  Committee  first   sought  to  marshal  the 

i  Address  delivered  at  the  annual  meeting  of  the  New  York  State  Bar 
Association  held  in  New  York  York  city  January  11-12,  1918,  by  Mr. 
Taft.  chairman  of  the  War  Committee  of  the  Bar  of  the  City  of  New 
York. 

53 


54  PAPERS  AND  ADDRESSES 

resources  of  the  bar  of  New  York  City  by  addressing 
a  circular  letter  to  its  14,000  members,  inviting  their 
cooperation  and  requesting  them  to  give  information 
which  would  aid  the  committee  in  organizing  the  work. 
Responses  were  received  from  nearly  4,000  lawyers 
and  information  was  thus  obtained  which,  on  being 
classified  and  card  catalogued,  has  enabled  the  com- 
mittee to  call  to  its  assistance  members  of  the  bar  as 
occasion  has  arisen. 

It  has  been  an  important  part  of  the  work  of  the 
committee  to  give  to  enlisted  men  and  their  depend- 
ents gratuitous  advice  concerning  their  personal  affairs 
before  they  leave  the  country.  This  work  has  included 
the  settlement  of  claims  growing  out  of  controver- 
sies over  leases  and  other  contracts,  the  drawing  of 
wills,  trust  deeds  and  other  papers,  advice  with  ref- 
erence to  real  estate,  life  insurance  and  partnership 
matters,  and  concerning  the  adjustment  of  domestic 
difficulties  of  a  variety  of  kinds  and  the  right  of 
municipal  employees  to  receive  a  portion  of  their 
salaries  after  entering  the  military  service.  This 
work  has  been  dealt  with  under  the  direction  of  a  sub- 
committee by  a  force  of  volunteer  lawyers  who  have 
been  pretty  continuously  engaged  upon  it.  The  com- 
mittee has  not  undertaken  to  conduct  lengthy  litiga- 
tions or  otherwise  to  perform  legal  services  which 
promised  to  be  protracted,  and  especially  where  the 
financial  condition  of  applicants  has  made  it  suitable 
that  they  should  employ  their  own  lawyers  and  pay  for 
their  services.  It  has  rather  devoted  itself  to  settling 
the  exigent  affairs  of  men  called  into  the  service,  by 
giving  them  reliable,  prompt  and  gratuitous  legal  as- 
sistance. In  order  that  enlisted  men  should  know  what 
the  committee  offered  to  do,  notices  have  been  inserted 
in  the  newspapers  and  have  been  posted  in  armories, 


THE  BAK  IN  THE  WAR  55 

oamps  and  other  places  where  they  would  attract  at- 
tention. 

The  committee  proposes  to  enter  upon  relief  work, 
but  happily  this  has  not  yet  proved  to  be  necessary. 
It  is  known,  however,  that  a  substantial  number  of  law- 
yers have  entered  the  military  service,  and  it  is  quite 
probable  that  they  and  their  dependents  will  some  time 
require  assistance.  We  are  considering  ways  and 
means  for  raising  a  considerable  sum  of  money  to 
afford  relief  when  the  occasion  arises.  The  distress 
among  the  professional  classes  in  England  and  France 
has  been  widespread  and  severe,  and  organizations  for 
their  relief  have  found  much  to  do  in  those  countries. 

At  the  outset  it  was  thought  that  provision  could  be 
made  for  the  care  of  the  business  of  lawyers  called  to 
the  front.  Indeed,  that  part  of  the  proposed  work 
attracted  more  attention  than  any  other.  It  had  a 
sentimental  aspect,  since  an  organization  for  such 
work  implied  not  alone  patriotism  and  self-sacrifice  on 
the  part  of  the  lawyers  remaining  at  home  but  also  a 
certain  commendable  comradeship  among  members  of 
the  profession.  From  all  parts  of  the  country  in- 
quiries were  received  as  to  the  manner  in  which  it  was 
proposed  that  the  business  of  lawyers  entering  the 
army  should  be  conserved.  The  expectation,  how- 
ever, that  this  part  of  the  work  would  require  serious 
attention  has  not  been  realized.  With  one  or  two  neg- 
ligible exceptions,  no  applications  have  been  made  to 
the  committee  for  its  assistance.  The  difficulty  about 
conserving  the  practice  of  absent  lawyers  (apart  from 
the  reluctance  of  clients  temporarily,  at  the  instance 
of  an  outside  agency,  to  put  their  affairs  in  the  hands 
of  other  lawyers),  is  the  fact  that  lawyers  who  have 
any  business  worth  preserving  have,  without  the  inter- 
vention of  the  committee,  made  private  arrangements 


56  PAPERS  AND  ADDRESSES 

with  fellow  members  of  the  bar.  Especially  is  this  so 
with  the  older  lawyers  who  have  become  officers  in  the 
military  service;  and  the  younger  lawyers  within  the 
draft  age  are  generally  law  clerks,  or,  if  they  have  an 
independent  practice,  it  is  more  or  less  spasmodic  and 
accidental,  and  cannot  be  anticipated  or  provided  for. 
In  England  the  conditions  are  quite  different,  and  in 
some  cases  it  has  been  found  quite  practicable  to  con- 
serve the  business  of  barristers  going  to  the  front; 
but  in  this  country  provision  of  that  kind  does  not 
seem  to  be  practicable. 

The  War  Committee  on  its  organization  made  a 
written  tender  to  numerous  officers  of  the  federal, 
state  and  municipal  governments  of  its  cooperation 
in  connection  with  any  war  work  in  which  legal  ability 
and  experience  might  be  useful.  This  tender  has  been 
availed  of  with  frequency,  and  the  committee  has  been 
able  to  procure  and  organize  for  the  government  the 
gratuitous  services  of  many  lawyers  in  a  variety  of 
ways. 

It  selected  and  recommended  to  the  United  States 
Attorney  for  the  Southern  District  of  New  York, 
twenty-five  lawyers  to  investigate  evasions  of  the  draft, 
applications  by  alien  enemies  for  permits  and  sus- 
picious cases  of  a  variety  of  kinds  requiring  the  con- 
fidential cooperation  of  reliable  assistants.  The  War 
Committee  aided  the  Director  of  the  State  Military 
Census,  advised  him  as  to  his  powers  and  prepared 
the  forms  for  use  in  the  administration  of  the  law. 
At  the  request  of  the  Mayor's  Committee  on  National 
Defense,  it  obtained  the  gratuitous  services  of  about 
forty  lawyers  who  under  the  first  draft  aided  in  or- 
ganizing, and  at  the  outset  in  advising,  the  Local  Ex- 
emption Boards.  At  the  request  of  the  Adjutant  Gen- 
eral, the   committee  recommended   189   carefully  se- 


THE  BAR  IN  THE  WAR  57 

lected  lawyers  who  acted  in  the  first  draft  as  the 
representatives  of  the  Provost  Marshal  General  in  the 
Local  Exemption  Districts  in  the  city  of  New  York, 
and  an  additional  number  of  lawyers  who  performed 
similar  work  before  the  District  Board  for  that  city, 
aiding  that  Board  in  the  decision  on  appeal  of  upwards 
of  40,000  cases. 

It  is  now  well  known  to  members  of  the  profession 
that  the  new  Selective  Service  Regulations  of  the  War 
Department  and  the  questionnaires  provided  for  there- 
under, were  of  such  a  complicated  character  that  the 
government  wisely  determined  that  success  in  classi- 
fying the  remaining  registrants  under  the  Selective 
Service  Law,  would  necessitate  the  cooperation  of  the 
entire  bar  of  the  county  in  aiding  the  registrants  in 
filling  out  their  questionnaires  and  in  advising  them 
as  to  their  rights. 

In  the  first  draft  about  one  million  out  of  the  aggre- 
gate number  of  nearly  ten  millions  of  registrants  were 
called,  and  between  600,000  and  700,000  were  inducted 
into  the  army.  Difficulties  were  experienced,  however, 
in  proceeding  in  this  manner,  and  it  was  decided  by  the 
War  Department  that  the  entire  body  of  registrants 
who  had  not  been  inducted  should  be  classified  in  the 
order  in  which  they  were  to  be  selected  for  service  in 
the  army;  and  that  thus,  by  a  single  operation  the  gov- 
ernment should  obtain  all  of  the  information  which 
would  enable  it  to  make  an  army  and  at  the  same  time 
make  provisions  for  the  industrial  needs  of  the  coun- 
try. The  President  in  his  Foreword  to  the  Regula- 
tions, said:  "  We  must  make  a  complete  inventory  of 
the  qualifications  of  all  registrants  in  order  to  deter- 
mine, as  to  each  man  not  already  selected  for  duty 
with  the  colors,  the  place  in  the  military,  industrial  or 
agricultural  ranks  of  the  nation  in  which  his  experience 


58  PAPERS  AND  ADDRESSES 

and  training  can  best  be  made  to  serve  the  common 
good.  This  project  involves  an  inquiry  by  selection 
boards  into  the  domestic,  industrial  and  educational 
qualifications  of  nearly  ten  million  men." 

The  general  plan  seems  to  have  been  in  part  based 
on  the  successive  steps  taken  by  England  which  ulti- 
mately developed  into  the  present  Conscription  Act. 
After  an  effort  to  raise  an  army  by  voluntary  enlist- 
ment had  proved  to  be  unsatisfactory,  the  British  Par- 
liament in  July,  1915,  passed  the  National  Registration 
Act,  which  was  designed  to  ascertain  in  districts  the 
supply  of  different  classes  of  labor  and  of  men  of 
military  age.  This  registration  proved  to  be  very  use- 
ful in  Lord  Derby's  effort  to  raise  an  army  by  volun- 
tary enlistment,  but  an  army  of  sufficient  size  could 
not  be  raised  in  that  way  within  the  limited  time  at 
hand;  and  there  followed  in  January,  1916,  the  first 
Military  Service  Act  which  applied  to  unmarried  men, 
and  widowers  without  children  dependent  upon  them, 
who  were  from  eighteen  to  forty-one  years  of  age. 
Many  of  the  features  of  our  own  Selective  Service 
Law,  including  those  relating  to  immunity  from  con- 
scription on  account  of  employment  in  industrial  occu- 
pation which,  in  the  national  interest,  it  was  of  im- 
portance not  to  interrupt,  or  of  the  dependency  of  rel- 
atives who  would  become  a  public  charge  if  deprived  of 
support,  were  in  some  form  contained  in  this  law ;  and 
provision  was  made  for  local  tribunals  like  our  Local 
Exemption  Boards,  as  well  as  for  a  system  of  appeals. 
This  act  also  proved  to  be  inadequate,  and  in  May, 
1916,  the  Second  Military  Service  Act  was  passed, 
which  included  within  its  provisions  every  male  Brit- 
ish subject  between  the  ages  of  eighteen  and  forty,  and 
all  men  thirty  days  after  they  became  eighteen.  The 
act  extended  the  time  of  the  men  then  in  the  service 


THE  BAR  IN  THE  WAR  59 

and  recalled  all  the  time-expired  men  under  forty-one. 
It  is  thus  evident  that  Great  Britain  arrived  at  a 
complete  scheme  of  conscription  only  by  passing 
through  a  number  of  experimental  stages.  This  pro- 
gressive development  has  undoubtedly  been  of  great 
value  to  our  government  and  has  saved  us  much  dis- 
cussion and  probably  many  difficulties  which  the 
prompt  passage  of  the  Selective  Service  Law  and 
adoption  of  the  regulations  have  avoided.  To  some 
extent,  however,  the  first  draft  in  this  country  was 
experimental — or  at  least  it  suggested  that  methods 
might  be  adopted  which  would  be  more  comprehensive 
and  thorough;  and  accordingly  a  system  was  devised 
which,  by  a  single  process,  sought  to  classify  the  entire 
body  of  registrants  and  enable  the  government  with 
certainty  to  ascertain  the  extent  and  the  character 
of  the  military  resources  of  the  country  so  far  as  they 
were  dependent  upon  men  between  the  ages  covered  by 
the  law.  As  the  Provost  Marshal  General  announced, 
the  design  of  the  new  regulations  without  the  "haste 
and  confusion"  necessary  under  the  first  draft  was 
to  take  from  each  community  "  only  those  who  can  be 
spared  with  the  least  possible  interference  with  the 
domestic  and  economic  life  of  the  community,"  while 
the  nation  was  at  the  same  time  enabled  to  meet  at 
home  "  problems  of  industrial,  agricultural  and  eco- 
nomic conservation  with  which  we  are  bound  to  be 
confronted."  The  elaborate  system  which  was  re- 
sorted to  was  no  doubt  necessary  to  accomplish  these 
results,  and  I  have  no  hesitation  in  saying  that  the 
regulations  through  which  the  system  is  being  carried 
into  effect,  in  its  general  plan,  in  the  completeness  of 
detail  and  in  the  prevision  which  marks  the  manner  in 
which  it  deals  with  new  and  anomalous  conditions,  is 
a  very  creditable,  if  not  a  very  remarkable,  piece  of 


60  PAPERS  AND  ADDRESSES 

legislation.  The  regulations  are  necessarily  volum- 
inous and  complicated,  and,  without  a  knowledge  of 
their  provisions,  the  questionnaire,  on  the  answers  to 
which  the  entire  classification  is  based,  is,  even  to  a 
lawyer,  somewhat  confusing.  Even  under  the  first 
draft  one  of  the  chief  sources  of  difficulty  came  from 
the  mistakes  of  registrants  from  their  ignorance  of 
their  rights  and  duties  under  the  law;  and  the  embar- 
rassment from  the  same  cause  became  greatly  increased 
by  the  more  comprehensive  and  permanent  character 
of  the  new  regulations ;  indeed,  it  made,  in  the  words 
of  the  Provost  Marshal  General,  the  creation  of  Legal 
Advisory  Boards  to  assist  registrants  in  correctly 
answering  the  questionnaires  "one  of  the  most  vital 
necessities  of  the  new  system." 

The  opportunity  thus  afforded  by  the  regulations 
for  the  participation  by  the  legal  profession  in  the 
enormously  important  work  of  raising  the  national 
army  is  an  event  of  no  small  importance  in  the  history 
of  the  bar.  In  transmitting  the  regulations  to  the 
governors  of  the  several  states,  and  requesting  the 
cooperation  of  the  state  and  local  governments  in 
carrying  the  plan  of  the  Selective  Service  Law  and 
Regulations  to  a  successful  consummation,  the  Provost 
Marshal  General  stated  that  it  was  contemplated  that 
it  would  be  necessary  to  create  an  organization  in  each 
state  which  would  absorb  all  members  of  the  legal 
profession  and  "assign  to  each  a  definite  place  and 
duty  in  the  winning  of  this  war. ' '    He  added : 

"We  have  not  yet  given  the  legal  profession  a  definite 
place  in  the  organized  ranks  of  the  nation,  and  what  is  here 
proposed  offers  a  chance  that  should  be  welcomed  enthusias- 
tically by  every  lawyer  in  particular  and  by  the  whole  legal 
profession  .  .  . 

"No  more  important  post  could  be  offered  a  lawyer  at  this 


THE  BAR  IN  THE  WAR  61 

time  than  the  active  duty  of  assisting  in  the  raising  of  our 
armies  and  in  this  way  can  be  provided  a  very  necessary 
auxiliary  of  the  selective  service  system  without  making  any 
demand  on  the  time  of  any  lawyer  to  which  any  patriotic 
citizen  would  hesitate  to  respond." 

And  the  President  in  his  Foreword  to  the  Regula- 
tions themselves,  said: 

"I  urge  men  of  the  legal  profession  to  offer  themselves  as 
Associate  Members  of  the  Legal  Advisory  Boards  to  be  pro- 
vided in  each  community  for  the  purpose  of  advising  regis- 
trants of  their  rights  and  obligations  and  of  assisting  them 
in  the  preparation  of  their  answers  to  the  questions  which 
all  men  subject  to  the  draft  are  required  to  submit." 

In  line  with  this  suggestion,  in  section  30  of  the  reg- 
ulations, it  is  further  stated: 

"It  should  be  the  pride  of  every  lawyer  that  no  registrant 
within  his  district  is  without  competent  legal  advice  and 
assistance  in  preparing  all  papers  that  such  registrant  is  re- 
quired to  submit  in  the  process  of  the  selection  of  citizens  of 
this  nation  for  duty  in  the  present  emergency." 

And  by  section  46  it  is  asserted  that  it  is  inconsistent 
with  the  duty  imposed  upon  members  of  the  Legal 
Advisory  Boards  "to  seek  clients  for  the  purpose  of 
urging  and  advocating  individual  cases  in  any  other 
way  than  as  disinterested  and  impartial  assistants  of 
the  selective  service  system,"  while  by  the  same  sec- 
tion, lawyers  are  urged  "freely  and  without  compen- 
sation to  give  their  best  service  to  the  nation." 

The  duty  of  Legal  Advisory  Boards  extends  to  advis- 
ing as  to  the  true  meaning  and  intent  of  the  law  and 
regulations,  of  assisting  registrants  in  making 
answers  to  the  questionnaire,  and  in  aiding  "generally 


62  PAPERS  AND  ADDRESSES 

in  the  just  administration  of  said  law  and  regulations." 
There  is  thus  imposed  upon  members  of  the  bar  a  most 
important  and  a  most  delicate  duty.  It  does  not  create 
precisely  the  relation  of  lawyer  and  client,  but  the 
service  bears  more  resemblance  to  the  judicial  func- 
tion, while  it  is  in  important  features  administrative. 
No  member  of  the  Legal  Advisory  Board  in  advising  a 
registrant  is  to  forget  the  duty  he  owes  to  the  country 
to  administer  the  law  and  the  regulations  according  to 
their  true  intent  and  meaning  for  the  purpose  of  rais- 
ing an  army;  nor,  on  the  other  hand,  should  he  forget 
the  vital  interests  of  the  registrant  who  is  called  upon 
to  sacrifice  his  personal  comfort,  his  property  inter- 
ests, and  perhaps  his  life. 

The  duty  which  the  bar  at  large  was  called  upon  to 
perform  called  not  alone  for  strenuous  effort  and  the 
setting  aside  of  convenience  and  business  engagements, 
but  also  for  the  performance  of  high  and  patriotic 
duties.  The  call  of  the  President  was  responded  to 
with  patriotic  zeal.  The  bar  as  a  unit  sprang  to  the 
assistance  of  the  national  government,  and  the  manner 
in  which  the  service  was  performed  should  tend  to 
remove  prejudice  which  sometimes  has  existed  con- 
cerning the  useful  function  of  the  lawyer  in  our  sys- 
tem of  government. 

The  regulations  provided  for  the  appointment  of 
Legal  Advisory  Boards  of  three  Permanent  Members  in 
such  districts  as  might  be  created  by  the  governor  of 
each  state.  Members  were  also  to  be  appointed  in 
such  numbers  as  might  be  necessary  to  provide  ade- 
quate assistance.  Outside  of  the  greater  city  of  New 
York,  Governor  Whitman  constituted  each  county  of 
the  state  (with  one  or  two  minor  exceptions)  a  single 
district  within  which  a  Legal  Advisory  Board  was  to  be 
appointed;  but  he  made  the  greater  city  of  New  York 


THE  BAR  IN  THE  WAR  63 

a  single  district,  and  appointed  one  board  of  three  Per- 
manent Members  to  organize  the  lawyers  of  the  city. 
That  Board  subdivided  the  work  among  the  five  bor- 
oughs composing  the  municipality,  and  appointed  in 
each  of  the  boroughs  an  Auxiliary  Legal  Advisory 
Board  of  three  Associate  Members.  Each  borough 
was  in  turn  divided  into  subdistricts  corresponding  to 
the  Local  Exemption  Districts  under  the  jurisdiction  of 
the  Local  Exemption  Boards,  and  a  Legal  Advisory 
Board  of  three  Associate  Members,  known  by  the  name 
of  a  Local  Law  Board,  was  set  up  in  each  Exemption 
District.  There  was  thus  constituted  a  skeleton  organ- 
ization composed  of  nearly  600  lawyers.  But,  as  there 
were  about  540,000  registrants  in  New  York  City,  who 
would  be  required  to  respond  to  the  questionnaire,  it 
was  decided  from  an  estimate  of  the  average  time 
which  would  be  occupied  in  filling  in  the  questionnaire 
of  each  registrant  and  otherwise  advising  him,  that 
there  would  be  required  not  less  than  3,000  lawyers. 
Accordingly,  provision  was  made  for  the  appointment 
of  an  additional  number  of  Associate  Members  to  be 
assigned  to  the  Local  Law  Boards  in  the  several  dis- 
tricts in  such  numbers  as  it  was  thought  they  might 
be  required.  Local  Law  Boards  in  each  district  were 
required  to  determine  the  numbers  of  additional  Asso- 
ciate Members  that  were  necessary  and  upon  their 
recommendation  such  members  in  large  numbers  have 
been  appointed. 

There  have  been  formally  designated  in  the  City  of 
New  York  by  the  Permanent  Members  of  the  Legal 
Advisory  Board,  nearly  3,000  lawyers,  all  of  whom 
have  taken  the  oath  of  office  required  under  the  pro- 
visions of  the  regulations  and  have,  since  the  regula- 
tions went  into  effect,  been  actively  employed  in  the 
performance  of  their  duties.     The  War  Committee  of 


64  PAPERS  AND  ADDRESSES 

the  Bar  rendered  active  assistance  in  the  selection  of 
Associate  Members  of  the  Legal  Advisory  Board,  and 
in  its  initial  stages  acted  as  the  unofficial  agency  by 
which  the  Legal  Advisory  Board  has  been  able  to  erect 
the  organization  above  described.  When  the  organiza- 
tion was  complete,  offices  were  established.  An  exten- 
sive central  office  organization  became  necessary  and 
was  established  in  the  Hall  of  Records  Building  in  the 
city  of  New  York,  in  rooms  furnished  by  the  city. 
In  each  of  the  boroughs  also  it  has  been  necessary  to 
maintain  a  permanent  office  organization,  since  the 
magnitude  of  the  work  and  the  necessity  that  it  be 
done  with  thoroughness  and  uniformity  throughout 
the  city  required  that  it  be  directed  through  the  inter- 
mediate agency  of  the  Auxiliary  Boards  in  the  several 
boroughs.  In  maintaining  the  several  central  offices 
a  large  expense  has  been  incurred  for  clerical  assist- 
ance, printing  and  other  office  expense.  No  appro- 
priation was  made  by  the  law  or  the  regulations  for 
such  expense  and  it  has  been  borne  entirely  by  volun- 
tary subscriptions  by  lawyers  of  the  city,  collected 
through  the  agency  of  the  War  Committee. 

The  service  of  the  bar  called  for  by  the  regulations 
was  to  be  nation-wide.  A  copy  of  the  questionnaire, 
the  letter  of  General  Crowder  to  the  governors  of  the 
several  states,  and  the  Foreword  of  the  President,  was 
sent  to  each  of  the  11,000  members  of  the  American 
Bar  Association;  and  in  section  30  of  the  regulations 
it  was  stated  that  for  the  assistance  of  the  governor  of 
each  state  he  was  to  have  the  active  cooperation  and 
assistance  of  the  American  Bar  Association.  It  was 
suggested  in  the  regulations  that  the  advisory  board 
in  each  district  should  be  presided  over  either  by  the 
county  judge  or  a  judicial  officer  having  a  similar  jur- 
isdiction.    This  suggestion  has  generally  been  adopted 


THE  BAR  IN  THE  WAR  65 

and  throughout  this  state  the  work  has  been  organized 
by  the  county  judges,  calling  together  the  lawyers  of 
the  several  counties  and  organizing  the  entire  bar  to 
assist.  In  New  York  City  this  procedure  was  not 
practicable  because  the  number  of  judges  was  insuf- 
ficient to  equip  the  local  districts,  and,  furthermore, 
they  would  have  been  unable  to  spare  the  time  from 
their  judicial  duties  for  the  performance  of  the  work. 
The  judiciary  of  each  borough,  was,  however,  con- 
sulted in  the  selection  of  auxiliary  boards ;  and  the  im- 
portance of  the  work  was  quickly  recognized  by  the 
courts,  the  Appellate  Divisions  in  the  First  and  the 
Second  Departments  making  a  rule  that  engagement 
of  counsel  in  the  work  under  the  Selective  Service  Reg- 
ulations was  to  be  accepted  as  an  excuse  for  the  ad- 
journment of  cases  in  all  the  courts.  We  have  been 
informed  that  in  some  of  the  states  the  work  occupied 
so  much  of  the  time  of  the  lawyers  that  the  courts 
were  adjourned  for  considerable  periods  of  time. 

It  is  not  possible  at  this  time  to  give  definite  infor- 
mation as  to  the  percentage  of  registrants  who  availed 
of  the  sendees  of  the  Legal  Advisory  Boards.  Since 
they  were  constituted  under  the  regulations  and  had 
their  official  status  confirmed  by  an  oath  of  office  taken 
as  officers  of  the  federal  government,  it  is,  perhaps, 
not  unnatural  that  among  the  ignorant  and  the  sus- 
picious, misrepresentations  should  have  been  made 
and  feelings  of  antagonism  engendered,  which  have 
united  to  prevent  some  registrants  from  availing  of 
the  services  of  the  boards  lest  they  should  be  used  as 
instruments  of  the  government  to  induct  registrants 
into  the  army,  even  though  they  might  be  entitled  to 
deferred  classification  or  even  to  exemption.  The  gov- 
ernment, however,  wisely  insisted  that  the  law  should 
be  administered  through  local  agencies  and  with  ref- 


66  PAPERS  AND  ADDRESSES 

erence  to  the  character,  occupation  and  susceptibilities 
of  localities ;  and  the  justice  with  which,  in  the  main, 
the  regulations  have  been  enforced  by  the  neighbors  of 
the  registrants  themselves,  has  tended  to  dissipate  the 
misunderstanding  and  prejudice.  To  some  extent  no 
doubt  the  propaganda  of  our  enemies  invaded  the  local 
exemption  districts  and  sought  to  reduce  the  efficiency 
of  the  selective  service  system.  The  foresight  of  the 
government,  however,  and  the  experience  of  the  local 
boards  and  the  cooperation  of  the  Legal  Advisory 
Boards,  reduced  to  a  minimum  the  danger  of  such  in- 
terference, and  up  to  the  present  time  the  classification 
provided  for  in  the  regulations  has  been  a  most  grati- 
fying success. 


MINUTE   CONCERNING   WAR 

At  the  close  of  the  reading  of  the  foregoing  paper, 
Henry  W.  Taft  presented  the  following  minute,  which 
was  unanimously  adopted  by  the  Association : 

''The  New  York  State  Bar  Association  affirms  its  unwav- 
ering loyalty  to  the  nation  and  pledges  the  united  support 
of  the  bar  of  the  state  to  the  Government  of  the  United 
States  in  the  vigorous  prosecution  of  the  war.  We  rejoice 
that  the  legal  profession  has  been  called  upon  by  the  Presi- 
dent to  give  its  aid  in  an  important  way  in  the  classification 
of  our  citizens  who  are  to  compose  our  army.  We  take  pride 
in  the  patriotic  and  zealous  manner  in  which  this  duty  has 
been  performed;  for  we  believe  that  the  raising  and  equip- 
ment and  transportation  of  our  military  forces  should  be 
the  chief  concern  of  every  true  American  citizen,  in  accord- 
ance with  his  opportunity  and  to  the  extent  of  his  ability. 

"While  criticism  of  such  preparation,  if  based  on  a  patri- 
otic desire  for  the  effective  prosecution  of  the  war,  should 
not  be  discouraged  and  is  sometimes  helpful,  we  denounce 
opposition  springing  from  political  motives,  indifferent  patri- 


THE  BAR  IN  THE  WAR  67 

otism  or  downright  disloyalty.  We  suffer  with  scant  patience 
assertions  of  the  sanctity  of  free  speech  from  those  who 
oppose  the  war  on  narrow  and  technical  views  of  our  rights 
under  international  law.  The  country  has  no  time  to  listen 
to  the  subtle  distinctions  of  men  whose  speech  gives  aid  and 
comfort  to  the  enemy.  If  such  contentions  do  not  conceal 
hurtful  and  disloyal  propaganda,  at  least  they  hamper  the 
government  in  the  speed  and  effectiveness  of  war  preparations. 
"We  have  an  abiding  belief  in  the  justice  of  our  cause. 
In  disregard  of  international  law,  and  against  our  solemn 
and  repeated  warnings,  Germany  persisted  in  an  inhuman 
submarine  warfare;  and  when  American  lives  were  lost  there 
was  no  recourse  but  war.  But  reparation  for  loss  of  life 
is  not  the  sole  purpose  of  the  war,  for  the  defeat  of  the  Cen- 
tral Powers  is  necessary  if  civil  liberty  is  to  be  preserved 
throughout  the  world.  The  German  conception  of  the  state 
is  based  upon  an  inexorable  philosophy  which  demands  and 
cannot  exist  without,  an  autocratic  government,  and  that  in 
turn  would  fail  if  it  were  not  sustained  by  military  force  at 
home  and  by  implacable  methods  of  warfare  abroad.  It  is 
a  philosophy  which  exalts  the  idea  of  force  and  would  trans- 
mute the  world  into  an  armed  camp,  and  the  arts,  the  sciences, 
the  humanities  and  religion,  would  stand  still  or  retrograde 
while  the  nations  of  the  earth  were  engaged  in  a  struggle  for 
self-preservation. ' ' 


REPORT  OF  THE  WAR  COMMITTEE 


IV 
REPORT  OF  THE  WAR  COMMITTEE  l 

The  War  Committee  begs  leave  to  submit  the  follow- 
ing report: 

This  committee  was  appointed  pursuant  to  a  reso- 
lution adopted  at  the  last  annual  meeting.  Its  duties 
were  not  denned ;  but  as  the  war  progressed,  the  com- 
mittee has  assumed  that  it  could  perform  a  useful 
function  by  gathering  information  as  to  the  war  work 
being  done  by  lawyers  throughout  the  state,  and  by  de- 
termining whether  such  work  could  be  usefully  coor- 
dinated. 

At  the  last  annual  meeting  of  the  Association,  the 
chairman  of  the  committee  made  a  comprehensive 
statement  of  the  war  work  undertaken  by  lawyers  in 
the  city  of  New  York  (Annual  Report,  1918,  page  212). 
That  work  has  continued  with  increasing  activity. 
The  Executive  Committee  of  the  War  Committee  of  the 
Bar  of  the  City  of  New  York  has  recently  made  a 
comprehensive  report  concerning  its  activities  and 
those  of  the  Legal  Advisory  Boards,  and  your  commit^ 
tee  is  of  the  opinion  that  so  far  as  the  city  of  New  York 
is  concerned,  it  can  do  no  better  than  file  that  report 
as  a  part  of  its  report.  It  is,  therefore,  annexed  hereto 
and  marked  "Schedule  1."  (Schedules  2,  3  and  4 
contain  merely  statistical  information  and  are  omitted. ) 

Your  committee  has  sought  to  obtain  from  other 
parts  of  the  state  information  as  to  the  activities  of 
members  of  the  bar  in  war  work.  It  addressed  a  cir- 
cular letter  to  the  chairmen  of  57   Legal  Advisory 

i  Report  presented  by  Mr.  Taft  as  chairman  of  the  War  Committee  of 
the  Association  at  the  annual  meeting  of  the  New  York  State  Bar  Asso- 
ciation held  in  New  York  City  January  17-18,  1919. 

71  ' 


72  PAPERS  AND  ADDRESSES 

Boards  and  the  presidents  of  54  county  and  other  local 
bar  associations. 

There  have  been  received  93  responses,  reporting 
more  or  less  fully  what  has  been  done.  These  have  a 
certain  historical  value  to  the  profession  and  they  have 
therefore  been  delivered  to  the  secretary  of  the  Asso- 
ciation in  order  that  they  may  be  preserved  in  its 
archives. 

The  work  of  lawyers  in  the  rural  communities  has 
been  of  the  same  general  character  as  that  in  the  cities 
of  the  state.  Practically  the  entire  bar  of  the  state 
has  been  engaged  in  war  work  similar  to  that  done 
in  the  city  of  New  York  by  both  the  War  Committee 
of  that  city  and  the  Legal  Advisory  Boards,  which  was 
fully  described  in  the  address  of  the  chairman  of  this 
committee  at  the  last  annual  meeting  and  also  in  the 
report  of  the  War  Committee  just  referred  to.  In 
some  parts  of  the  state  the  Legal  Advisory  Boards  have 
not  only  aided  in  the  enforcement  of  the  Selective  Ser- 
vice Law,  but  have  also  given  free  advice  to  enlisted 
men  and  their  dependents,  and  engaged  in  patriotic 
work  of  a  general  character.  In  other  parts  of  the 
state  bar  associations  have  organized  the  work.  In 
no  place  outside  of  the  city  of  New  York  has  the  work 
been  of  such  a  volume  as  to  require  an  organization 
like  the  War  Committee  of  the  Bar  of  the  City  of  New 
York,  although  in  some  cases  the  Legal  Advisory 
Boards  have  appointed  sub-committees  to  advise  en- 
listed men,  and  much  more  frequently  than  in  the  city 
of  New  York,  have  registrants,  enlisted  men  and  their 
dependents  been  advised  by  lawyers  at  their  offices.  In 
many  parts  of  the  state  the  work  of  lawyers  has  been 
organized  to  aid  in  Liberty  Loan  and  War  Savings 
Stamp  campaigns,  and  they  have  also  cooperated  in  the 
drives  of  the  Red  Cross,  the  Young  Men's  Christian 


REPORT  OF  THE  WAR  COMMITTEE       73 

Association,  the  Young  Women's  Christian  Associa- 
tion, the  Knights  of  Columbus,  the  Jewish  Welfare 
Board,  the  War  Camp  Community  Service,  the  Amer- 
ican Library  Association  and  the  Salvation  Army. 
They  have  also  actively  participated  as  "Four  Min- 
ute" men  in  making  patriotic  speeches,  and  have 
naturally  had  to  deal  with  war  risk  insurance  inves- 
tigations and  matters  of  allotments  to  dependents  of 
enlisted  men.  In  some  parts  of  the  state  where  there 
were  few  lawyers,  it  has  been  necessary  for  them  to 
call  to  their  aid  laymen  who  were  directed  by  lawyers 
in  the  work  of  aiding  registrants  to  fill  in  question- 
naires. Thus,  in  the  county  of  Essex,  where  the  en- 
tire bar  numbers  only  20  lawyers,  it  was  necessary  to 
call  to  their  aid  73  laymen  with  whose  cooperation  the 
legal  advisory  work  of  the  county  was  efficiently  per- 
formed. 

The  work  of  the  lawyers  was,  of  course,  everywhere 
performed  gratuitously  and  apparently  with  industry 
and  patriotic  ardor.  The  work  was  organized  in  the 
manner  best  adapted  to  the  locality  and  particularly 
with  reference  to  the  means  of  transportation.  In 
some  of  the  counties  headquarters  had  to  be  established 
at  a  central  point  and  branch  committees  organized  for 
the  convenience  of  registrants,  while  in  the  larger  cities 
it  became  necessary  to  organize  auxiliary  and  local 
boards  with  an  adequate  number  of  associate  members. 

The  committee  has  obtained  from  the  Selective  Serv- 
ice Headquarters,  formerly  the  Adjutant  General's  of- 
fice, which  is  the  agency  through  which  the  Governor 
has  acted  in  administering  the  Selective  Service  Law, 
certain  statistical  information  which  has  historical 
value,  and  which  it  deems  advisable  to  place  in  the 
archives  of  the  Association. 

There  were  approximately  12,000  Associate  Members 


74  PAPERS  AND  ADDRESSES 

of  Legal  Advisory  Boards  in  this  state,  of  whom  about 
5,330  were  in  the  city  of  New  York,  all  except  a  negli- 
gible number  being  lawyers.  In  each  of  58  districts 
constituted  by  the  Governor,  which,  except  in  the  case 
of  large  cities,  corresponded  with  the  counties  of  the 
state,  three  Permanent  Members  of  the  Legal  Advisory 
Boards  and  a  sufficient  number  of  Associate  Members 
were  appointed.  In  each  district  for  which  a  Local 
(Exemption)  Board  was  established,  a  Government 
Appeal  Agent  was  appointed.  In  most  of  the  counties 
this  officer  was  the  District  Attorney  or  the  Corpor 
ation  Counsel,  although  in  the  larger  cities  it  was 
not  possible  to  fill  the  office  in  that  way.  That  was 
particularly  the  case  in  New  York  City.  The  duties 
of  the  office  required  the  appointment  of  a  lawyer  and 
the  duties  of  the  agents  were  generally  arduous  and 
of  great  value  to  the  local  boards.  There  were  435 
appeal  agents  appointed.  It  is  estimated  by  Major 
Hutchinson,  in  charge  of  the  Selective  Service  Head- 
quarters at  Albany,  that  ninety-five  per  cent,  of  all 
registrants  throughout  the  state  received  the  assist- 
ance of  members  of  the  Legal  Advisory  Boards.  The 
magnitude  of  the  work  may  be  inferred  from  the  fact 
that  2,521,988  men  were  registered  in  this  state,  of 
whom  1,482,859  were  registered  in  New  York  City. 
Each  of  the  twelve  thousand  Associate  Members  of  the 
Legal  Advisory  Boards  thus  advised  on  the  average 
200  registrants. 

Your  committee  has  been  furnished  by  the  Provost 
Marshal  General  with  some  interesting  information 
concerning  the  participation  of  lawyers  throughout 
the  country  in  the  execution  of  the  Selective  Service 
Law.  Approximately  1,500  lawyers  have  been  mem- 
bers of  local  boards ;  and  many  attorneys  served  upon 
the  District  Boards  which  held  the  relation  of  appellate 


REPORT  OF  THE  WAR  COMMITTEE      75 

tribunals  to  the  local  boards,  and  also  had  original 
jurisdiction  over  claims  for  exemption  and  deferred 
classification,  based  upon  agricultural,  industrial  and 
occupational  grounds.  10,900  lawyers  have  been  Per- 
manent Members  of  Legal  Advisory  Boards,  while  108,- 
000  have  been  Associate  Members  of  such  boards.  Ap- 
proximately 4,700  lawyers  have  served  as  Government 
Appeal  Agents.  As  there  are,  according  to  the  Census 
Bureau,  131,909  lawyers  in  the  United  States,  it  thus 
appears  that  almost  the  entire  bar  of  the  country  has 
been  engaged  in  one  capacity  or  another  in  aiding  in 
the  building  of  an  army  through  the  provisions  of  the 
Selective  Service  Law.  There  have  been  371  lawyers 
commissioned  in  the  Judge  Advocate  General's  depart- 
ment. The  states  from  which  these  have  been  ap- 
pointed appear  from  a  statement  furnished  to  the 
committee  by  the  Provost  Marshal  General.  Of  the 
total  number  48  of  those  receiving  commissions  came 
from  New  York.  Forty-two  lawyers  have  been  ap- 
pointed as  members  of  the  Army  Service  Corps  to  act 
as  claim  adjusters  in  the  Judge  Advocate  General's  de- 
partment. 

At  first  the  Adjutant  General  and  later  a  special 
bureau  under  charge  of  Major  Hutchinson  were  des- 
ignated by  the  Governor  to  administer  the  Selective 
Service  Law  within  the  state.  The  work  was  largely 
directed  by  lawyers.  In  New  York  City,  where  there 
were  over  one  million  four  hundred  thousand  regis- 
trants, the  burden  thrown  upon  the  Director  of  the 
Draft  was  enormous,  particularly  during  the  last  two 
registrations,  when  Mr.  Martin  Conboy,  a  lawyer  of 
New  York  City,  contributed  in  a  conspicuous  degree  to 
the  efficient  working  of  the  law.  His  predecessors  in 
office  had  been  two  other  lawyers  of  standing,  Mr. 
Roger  B.  Wood  and  Major  Philip  J.  McCook. 


76  PAPERS  AND  ADDRESSES 

It  has  not  been  practicable  to  ascertain  the  number 
of  lawyers  volunteering  their  services  in  the  govern- 
mental departments  and  engaging  in  both  civil  and  mil- 
itary work  incident  to  the  war.  It  is  a  matter,  how- 
ever, of  common  observation  that  there  have  been  large 
numbers  of  members  of  the  bar  who  have,  in  the  most 
patriotic  and  self-sacrificing  way,  abandoned  their  busi- 
ness and  devoted  their  entire  time  and  skill  to  aiding 
the  government  in  administering  the  departmental 
affairs,  which,  during  the  war,  have  been  enormously 
increased.  Many  of  these  volunteers  have  engaged 
in  work  not  strictly  legal  but  of  a  kind  in  which  their 
training  and  experience  have  made  them  particularly 
efficient. 

It  has  not  been  possible  to  obtain  reliable  statistics 
as  to  the  number  of  lawyers  who  have  entered  the  mili- 
tary service.  In  most  parts  of  the  state,  however, 
large  numbers  of  lawyers  of  military  age  have  received 
commissions  in  the  army  and  the  navy.  In  addition  to 
these  the  committee  is  informed  by  the  Provost  Mar- 
shal General  that  of  the  entire  number  of  lawyers  in  the 
United  States,  there  are  17,218  who  are  between  the 
ages  of  21  and  30.  There  have  been  inducted  into  the 
army  under  the  Selective  Service  Law,  5,000  lawyers, 
and  undoubtedly  most  of  theie  are  between  the  ages 
mentioned.  Those  inducted  were  undoubtedly  all  in 
Class  I.  In  the  state  of  New  York  the  total  number 
of  registrants  was  2,521,988  and  of  these  254,198  were 
inducted  into  the  army.  It  would  seem,  therefore, 
from  these  figures  that  the  proportion  of  lawyers  in- 
ducted into  the  army  was  probably  greater  than  that 
of  other  classes  of  the  community. 

Neither  accurate  nor  comprehensive  information  has 
been  available  as  to  the  casualties  among  lawyers  who 
have  been  in  the  military  service  of  the  country.     It 


REPORT  OF  THE  WAR  COMMITTEE       77 

may  be  possible  a  year  hence  to  obtain  information 
upon  this  point  and  it  is  the  hope  of  the  committee  that 
it  will  be  continued  for  the  purpose  of  gathering  in- 
formation upon  that  and  other  matters  connected  with 
the  war  during  the  coming  year. 

Finally,  the  committee  is  of  the  opinion  that  the  char- 
acter and  extent  of  the  participation  of  lawyers  in  all 
of  the  activities  incident  to  the  war  has  reflected  the 
greatest  credit  upon  the  profession.  This  war  has 
brought  into  play  great  activity  in  all  the  physical 
sciences,  and  among  all  of  the  belligerents  scientists 
have  vied  with  each  other  in  devising  means  and  instru- 
ments of  warfare  to  overcome  their  enemies.  But  in 
no  previous  war  have  those  trained  in  the  science  of 
law  been  called  upon  to  devote  their  skill  as  lawyers  to 
the  prosecution  of  the  war,  and  it  has  remained  for 
this  great  World  War  to  disclose  that  for  the  prompt 
and  efficient  making  of  a  great  modern  army,  through 
a  universal  draft  law,  it  is  necessary  to  call  to  the  aid 
of  the  executive  departments  those  trained  in  the  sci- 
ence and  practice  of  the  law.  Whether  the  task  could 
have  been  accomplished  at  all  without  the  assistance  of 
the  lawyers  need  not  be  asked.  It  is  at  least  certain 
that  the  Provost  Marshal  General  was  entirely  correct 
when  he  said  that  by  the  conception  of  the  Selective 
Service  Law  and  Regulations,  the  members  of  the  legal 
profession  had  been  given  "a  definite  place  in  the  or- 
ganized ranks  of  the  nation,"  that  "no  more  important 
post  could  be  offered  a  lawyer  at  this  time  than  the 
active  duty  of  assisting  in  the  raising  of  our  armies," 
and  that  in  this  way  he  would  become  ' '  a  very  neces- 
sary auxiliary  of  the  selective  service  system."  And 
it  is  equally  clear  that  the  bar  of  this  country  took  to 
heart  the  appeal  of  the  President  for  cooperation  and 
made  it  a  matter  of  pride  and  patriotism  that  nothing 


78  PAPERS  AND  ADDRESSES 

that  was  expected  of  the  members  of  the  profession 
should  be  omitted. 

Schedule  1 

report  of  the  executive  committee  of  the  war  com- 
mittee of  the  bar  of  the  city  of  new  york 

To  the  War  Committee  of  the  Bar:  At  the  com- 
mencement of  the  war  the  seven  organizations  of  law- 
yers in  this  city  appointed  war  committees.  These  or- 
ganizations were  the  Association  of  the  Bar  of  the  City 
of  New  York,  the  New  York  County  Lawyers'  Associa- 
tion, the  Brooklyn  Bar  Association,  the  Association  of 
the  Bar  of  the  County  of  Bronx,  the  Queens  County 
Bar  Association,  the  Richmond  County  Bar  Associa- 
tion and  the  Lawyers'  Club.  The  War  Committee  of 
the  Bar  was  formed  by  the  amalgamation  of  the  com- 
mittees of  these  organizations  into  a  single  body. 

The  bar  of  this  city  numbers  about  fifteen  thousand 
members.  Probably  not  more  than  four  or  five 
thousand  of  these  are  members  of  bar  associations. 
Many  lawyers  have,  therefore,  found  that  membership 
in  an  association  is  not  essential  to  the  honorable  pur- 
suit of  professional  activities.  Yet  bar  associations 
are  the  only  mediums  through  which  the  profession 
can  give  organized  expression  to  its  views  and  unite 
in  carrying  them  into  effect.  Action,  therefore,  by 
bar  associations  is  generally  regarded  as  reflecting  the 
views  of  the  profession;  and  in  that  sense  the  War 
Committee  of  the  Bar  may  be  regarded  as  representa- 
tive of  the  bar  of  this  city.  In  order  to  secure  the  sym- 
pathetic support  of  lawyers  not  members  of  these  seven 
associations  of  the  city,  the  committee  sent  a  cir  - 
cular  letter  to  the  fifteen  thousand  members  of  the  bar 
of  the  city,  inviting  their  cooperation  and  requesting 


REPORT  OF  THE  WAR  COMMITTEE   79 

them  to  give  such  information  as  would  enable  the 
committee  intelligently  to  call  upon  them  for  assist- 
ance. About  four  thousand  lawyers  responded,  patri- 
otically tendering  their  services,  and  many  of  them 
have  from  time  to  time  been  called  upon  by  the  com- 
mittee for  assistance,  although  the  burden  of  the  work 
has  necessarily  fallen  upon  a  relatively  small  number 
of  devoted  volunteers  who  have  been  able  and  willing  to 
take  from  their  other  occupations  a  sufficient  amount 
of  time  to  enable  the  committee  to  do  efficient  work. 

THE  CHARACTER  OF  THE  WORK  DIRECTED  BY  THE  COMMITTEE 

The  committee  received  no  charter  of  its  powers 
further  than  was  contained  in  the  announcement  of 
the  committees  of  some  of  the  associations,  that  it  was 
their  purpose  to  render  assistance  to  the  national, 
federal  or  city  government,  and  to  extend  aid  to  mem- 
bers of  the  legal  profession  serving  with  the  land  and 
naval  forces  of  the  United  States,  or  their  dependents. 
It  was  not  deemed  by  your  committee  that  lawyers  as 
an  organized  body  need  engage  in  such  gigantic  relief 
work  as  that  of  the  Red  Cross  and  other  similar  organ- 
izations, but  that  it  should  seek  in  cooperation  with 
them  to  bring  to  their  aid  the  kind  of  skilled  service 
which  lawyers  better  than  any  other  body  in  the  com- 
munity were  qualified  to  render. 

The  committee  has  always  contemplated  taking  up 
work  for  relief  of  destitute  lawyers  or  their  families, 
and  it  may  be  that  ultimately  something  will  have  to 
be  done  in  that  direction.  Up  to  the  present  time,  how- 
ever, few  cases  requiring  such  relief  have  been  called 
to  the  attention  of  the  committee;  and  it  is  probable 
that  the  committee  will  not  find  it  necessary  to  do  more 
than  to  investigate  cases  needing  relief,  and  to  refer 
them  for  pecuniary  assistance  to  such  organizations  as 


80  PAPERS  AND  ADDRESSES 

the  Red  Cross  and  the  Young  Men's  Christian  Asso- 
ciation, whose  funds  are  more  adequate  than  we  could 
ever  expect  the  funds  of  a  professional  committee  to 
be.  The  relations  which  the  committee  has  established 
with  these  great  relief  organizations  afford  a  basis  for 
the  belief  that  cases  of  financial  distress  can  be  ade- 
quately dealt  with  in  the  manner  indicated. 

Another  branch  of  work  which  it  was  thought  might 
engage  the  activities  of  the  committee  was  the  care 
of  the  business  of  lawyers  called  to  the  front.  In  Eng- 
land it  was  found  that  it  was  practicable  to  conserve 
the  practice  of  both  solicitors  and  barristers  in  the 
service.  Although  the  willingness  of  the  committee 
to  act  as  the  intermediary  in  a  similar  way  in  this  coun- 
try was  given  much  publicity,  few  cases  have  arisen 
which  have  required  attention;  and  in  these  the  expe- 
rience of  the  committee  leads  it  to  think  that  the  con- 
ditions of  practice  in  this  country  are  such  as  to  ren- 
der arrangements  for  conserving  a  law  practice  either 
impracticable  or  unnecessary.  In  a  few  cases  dealt 
with  by  the  committee  private  business  arrangements 
with  professional  friends  have  been  made  by  older 
lawyers  going  into  the  service.  The  large  number  of 
the  younger  lawyers  who  were  within  the  first  draft 
had  not  generally  established  a  practice  of  such  a  per- 
manent character  that  it  could  be  conserved. 

The  activities  of  the  committee  have  developed  as 
the  war  has  progressed,  and  a  justification  for  its  ex- 
istence has  appeared  in  the  insistent  and  continuous 
demand  for  its  services.  Broadly  speaking,  its  work 
has  been,  first,  the  furnishing  of  gratuitous  profes- 
sional services  to  enlisted  men  and  their  dependents, 
and,  second,  the  mobilization  from  time  to  time  of  law- 
yers in  order  to  furnish  to  governmental  agencies  and 
to  the  larger  relief  organizations  like  the  Red  Cross, 


REPORT  OF  THE  WAR  COMMITTEE      81 

the  Young  Men's  Christian  Association  and  Mayor's 
Committee,  expert  and  gratuitous  professional  service. 

SERVICES  RENDERED  TO  ENLISTED  MEN  AND  THEIR 

DEPENDENTS 

The  committee  has  rendered  services  in  a  greater 
variety  of  matters  than  would  ordinarily  arise  in  any 
well-organized  law  office.  It  has  dealt  with  contro- 
versies over  leases  and  other  contracts;  it  has  drawn 
wills,  trust  deeds  and  other  documents  with  reference 
to  real  estate;  it  has  advised  as  to  life  insurance  and 
partnership  matters;  it  has  adjusted  domestic  difficul- 
ties of  a  great  variety  of  kinds;  it  has  studied  and 
advised  as  to  the  right  of  government  employees  to 
receive  compensation  after  entering  the  military  serv- 
ice; it  has  had  to  consider  and  seek  to  have  applied 
innumerable  provisions  of  the  War  Risk  Insurance  Act 
and  Civil  Rights  Act ;  it  has  handled  claims  for  personal 
and  property  damage,  and  has  settled  many  claims 
growing  out  of  purchases  of  furniture  and  other  arti- 
cles upon  the  instalment  plan;  and  it  has  frequently 
been  called  upon  to  abate  the  rigor  of  the  landlord  and 
tenant  law  in  dispossess  cases.  The  committee  has 
attempted  to  deal  with  the  exigent  affairs  of  men 
called  into  the  service  and  their  dependents,  and  has 
sought  to  create  a  feeling  among  them  that  they  could 
turn  to  the  committee  with  confidence  that  they  would 
receive  sound  advice  and  would  not  be  victimized  by 
charges  which  they  could  ill  afford  to  pay;  but  where 
the  property  involved  or  the  character  of  the  service 
has  made  it  appear  that  lawyers  should  be  employed 
and  paid  for  their  services,  the  committee  has  not  hes- 
itated to  decline  to  act.  It  would  be  hard  to  describe 
the  perplexity  of  those  seeking  the  aid  of  the  committee, 
due  sometimes  to  ignorance  of  the  affairs  of  life,  some- 


82  PAPERS  AND  ADDRESSES 

times  to  suspicions  springing  from  painful  experiences 
with  unreliable  lawyers,  and  frequently  in  the  case 
of  those  living  at  a  distance,  to  strangeness  of  environ- 
ment. The  relief  which  has  been  afforded  to  the  most 
ignorant  and  most  humble  has  more  than  compensated 
for  the  time  and  trouble  which  have  been  devoted 
to  the  work;  and  the  committee  has  reason  to  believe 
that  the  army  and  navy  authorities,  as  well  as  the 
enlisted  men,  have  regarded  the  services  of  the  com- 
mittee as  contributing  in  a  sensible  degree  to  the  equa- 
nimity of  our  brave  men  who  have  gone  to  the  front — 
a  condition  essential  to  the  efficient  discharge  of  duty. 

Reference  has  been  made  to  the  Civil  Rights  and  War 
Risk  Insurance  Acts.  The  Civil  Rights  Act  gives  to 
the  enlisted  man  the  benefits  of  a  stay.  Under  its  pro- 
visions the  committee  has  negotiated  the  termination 
of  numerous  purchases  on  the  instalment  plan  and  has 
made  satisfactory  adjustments  of  other  claims  such  as 
contracts  for  the  purchase  of  country  lots,  while  in 
numberless  dispossess  cases  indigent  dependents  of 
soldiers  have  been  protected  against  inconsiderate  land- 
lords. The  committee  has  not  been  able  to  deal  with 
the  thousands  of  cases  involving  allotments,  allowances 
and  insurance  under  the  War  Risk  Insurance  Act,  since 
the  volume  of  such  cases  has  required,  for  anything 
like  adequate  treatment,  such  an  organization  as  the 
Red  Cross.  Yet  in  many  cases  of  delayed  allotments 
the  committee  has  had  the  satisfaction  of  giving  com- 
fort to  the  destitute  dependents  of  enlisted  men. 
Many  cases  have  arisen  where  allotments  have  been 
made  to  unworthy  wives,  and  it  has  been  necessary  to 
obtain  divorces  as  a  means  of  establishing  a  case  upon 
which  the  allotment  could  be  terminated. 

The  attention  of  the  committee  has  been  much  occu- 
pied by  applications  for  discharges  from  the  service 


REPORT  OF  THE  WAR  COMMITTEE   83 

where  men  have  been  inducted  either  through  misun- 
derstanding, mistake  or  ignorance.  The  effective 
treatment  of  this  class  of  cases  has  required  that  the 
committee  establish  relations  with  the  camp  authori- 
ties, particularly  at  Camp  Upton.  Each  case  has  re- 
quired an  investigation  of  home  conditions,  a  report 
by  the  Local  Exemption  Board  and  perhaps  by  the  Gov- 
ernment Appeal  Agent.  Certificates  of  physicians  and 
birth  and  marriage  certificates  have  to  be  obtained,  and 
affidavits  are  frequently  necessary.  The  committee 
has  endeavored  to  act  in  an  impartial  way,  and  it  is 
believed  that  the  commanding  officers  in  the  camps 
have  placed  much  reliance  upon  its  reports.  One  case 
will  serve  to  illustrate  how  meritorious  such  cases  may 
be.  A  young  man  of  22  years  of  age  was  the  only 
healthy  member  of  a  family  of  eight  children  ranging 
from  4  to  18  years;  four  of  the  family  were  tubercu- 
lous, one  just  recovered  from  an  operation  for  appendi- 
citis, and  another  with  heart  trouble,  in  the  hospital. 
The  father  was  confined  to  his  bed  with  tuberculosis 
and  chronic  rheumatism.  The  enlisted  son  was  earning 
from  $25  to  $28  a  week,  all  contributed  to  the  support 
of  the  family.  Through  ignorance,  he  failed  to  inter- 
pose the  claim  of  dependency,  and,  as  a  result,  was  in- 
ducted, leaving  at  home  eight  little  brothers  and  sisters 
and  a  sick  father  and  mother.  We  are  now  at  work 
endeavoring  to  procure  the  discharge  of  the  young 
man. 

It  is  obvious  that  frequently  the  work  of  the  com- 
mittee must  overlap  that  of  organizations  like  the  Red 
Cross,  but  we  repeat  that  the  committee  has,  as  a  rule, 
endeavored  to  confine  itself  to  cases  which  require  a 
legal  training  and  experience.  Working  arrangements 
with  the  Home  Service  Section  of  the  Red  Cross,  the 
Young    Men's     Christian    Association,     the     Young 


84  PAPERS  AND  ADDRESSES 

Women's  Christian  Association,  the  Law  Committee  of 
the  Mayor's  Committee,  the  Council  of  Organizations 
for  War  Service,  the  Jewish  Welfare  Society,  and  a 
number  of  settlement  societies  and  other  organizations 
have  been  made,  and  it  is  understood  by  these  organ- 
izations that  the  committee  is  equipped  to  deal  with 
all  cases  which  require  the  services  of  trained  lawyers. 

Efforts  have  been  made,  by  notices  extensively 
posted  in  near-by  camps,  arsenals,  armories  and 
throughout  this  city,  particularly  in  the  vicinity  of  the 
railroad  stations,  to  bring  the  committee  to  the  atten- 
tion of  men  in  the  service,  and  the  existence  and  pur- 
pose of  the  committee  is  known  to  the  commanding  offi- 
cers of  all  encampments  in  this  vicinity,  and  of  all  war- 
ships and  vessels  engaged  in  the  transportation  of 
troops.  Sailors  upon  warships  and  upon  transports 
are  frequently  referred  by  their  commanding  officers 
to  the  committee.  A  visit  to  the  offices  of  the  commit- 
tee will  give  some  idea  of  the  volume  of  the  work  done 
and  will  disclose  an  accumulated  mass  of  correspond- 
ence and  records.  The  constant  attendance  of  women, 
children  and  enlisted  men  awaiting  attention  to  their 
cases  will  excite  human  interest  and  sympathy. 

It  is  perhaps  pardonable  to  say  that  the  workers  of 
the  committee  have  received  a  reward  for  their  patri- 
otic efforts,  not  alone  in  the  consciousness  of  a  patri- 
otic duty  well  perf  ormed,  but  also  in  numerous  expres- 
sions of  gratitude  on  the  part  of  those  who  have  re- 
ceived the  benefit  of  the  services  of  the  committee. 
Frequently  this  gratitude  has  been  expressed  in  letters 
written  after  the  service  has  been  performed.  A  sister 
of  an  enlisted  man,  for  instance,  writes  to  our  Execu- 
tive Secretary,  "You  in  particular  and  your  organiza- 
tion in  general  would  oblige  to  accept  my  meager, 
though   heartiest   thanks   for   your   effort,   manliness 


REPORT  OF  THE  WAR  COMMITTEE      85 

and  promptness  withal  in  behalf  of  my  brother  'Over 
There'  ";  and  a  second-class  seaman  thanks  the  com- 
mittee for  recovering  $7.50  from  a  hotel  because  it 
had  accomplished  what  he  could  not  have  done, 
adding,  "I  reiterate  my  thanks  for  your  prompt  at- 
tention and  can  assure  you  it  heartens  a  man  in 
training  to  feel  that  the  public  is  behind  him."  An- 
other enlisted  man  who  was  troubled  about  the  set- 
tlement of  his  partnership  affairs,  says:  "Your 
courtesy  and  prompt  attention  in  this  moment  of 
need  is  a  real  service  to  me  and  I  appreciate  what  you 
are  doing  not  only  for  me  but  for  other  sailors  and 
soldiers  as  well."  A  wife  of  an  enlisted  man  having 
a  claim  for  $100,  writes:  "I  cannot  tell  you  how  de- 
lighted I  am  at  the  way  you  have  taken  care  of  this  for 
me.  I  think  the  committee  is  splendid  and  I  wish  I 
could  express  my  appreciation  for  what  you  have  done 
for  me." 

SERVICES    RENDERED    TO    PUBLIC    OFFICERS 

From  its  organization  the  committee  has  been  made 
use  of  by  public  officers  to  aid  by  advice  and  also  by 
recommending  lawyers  for  appointment  to  positions 
requiring  professional  knowledge.  The  United  States 
Attorney  for  the  Southern  District  of  New  York  has 
frequently  called  upon  the  committee  to  investigate 
and  report  upon  qualifications  of  lawyers  to  be  ap- 
pointed special  assistants  in  his  office,  and  particularly 
those  to  be  designated  for  voluntary  service  in  repre- 
senting the  government  in  the  prosecution  of  important 
cases  involving  sedition  and  treason.  At  one  time  the 
committee  recommended  25  lawyers  as  assistants  to  the 
United  States  Attorney  to  investigate  evasions  of  the 
draft,  applications  by  alien  enemies  for  permits  and 
suspected  offenses  against  war  measures.     The  com- 


86  PAPERS  AND  ADDRESSES 

mittee  aided  the  Director  of  the  State  Military  Census 
in  advising  him  as  to  his  powers  under  the  state 
statute,  and  prepared  a  set  of  forms  for  his  use.  The 
service  of  the  committee  in  connection  with  both  the 
first  and  the  second  selective  service  statutes  has  been 
continuous.  At  the  outset  the  committee  aided  the 
Mayor's  Committee  in  obtaining  the  services  of  40  law- 
yers who  aided  in  organizing  the  Local  Exemption 
Boards  throughout  the  city  and  in  advising  them  as  to 
their  duties.  It  then  investigated  the  qualifications  of 
189  lawyers  to  act  as  appeal  agents  under  the  Selective 
Service  Law,  and  in  the  second  draft  it  was  called  upon 
to  fill  vacancies  and  to  recruit  the  force  of  these  appeal 
agents.  Where  vacancies  now  occur  resort  is  still  had 
to  the  committee  to  fill  them.  Recently  the  committee 
has  been  asked  to  prepare  an  eligible  list  of  lawyers 
qualified  to  serve  as  commissioned  officers  in  the  Judge 
Advocate  General's  department,  and  it  has  devoted 
much  time  to  the  consideration  of  several  hundred  ap- 
plicants with  a  view  to  giving  to  the  Judge  Advocate 
General  confidential  assistance  in  equipping  his  force, 
as  soon  as  an  increased  number  of  officers  is  required. 
Federal  and  other  governmental  authorities  make  fre- 
quent calls  upon  the  committee  for  lawyers  for  war 
work  and  the  compliance  with  such  requests  is  an  im- 
portant part  of  the  committee's  routine  work. 

The  organization  of  the  Legal  Advisory  Boards  pro- 
vided for  under  the  Selective  Service  Law  and  Regula- 
tions fell  in  the  first  instance  upon  the  War  Commit- 
tee, which  was  the  only  organized  body  equipped  to  deal 
with  the  service.  The  first  step  taken  by  the  Governor 
was  to  nominate  to  the  President  as  the  chairman  of 
the  Legal  Advisory  Board  for  the  entire  city  of  New 
York,  the  chairman  of  the  War  Committee.  The  func- 
tion of  the  Legal  Advisory  Board  called  for  the  services 


REPORT  OF  THE  WAR  COMMITTEE   87 

of  the  legal  profession  generally,  but  in  the  city  of 
New  York,  which  was  created  a  district  to  be  presided 
over  by  a  single  Legal  Advisory  Board,  it  became  neces- 
sary to  provide  a  very  elaborate  machinery  for  the  ac- 
complishment of  the  work.  Ultimately  this  required 
the  appointment  by  the  three  Permanent  Members  of 
the  Legal  Advisory  Board  nominated  by  the  Governor 
and  designated  by  the  President,  of  more  than  four 
thousand  lawyers  as  Associate  Members  of  the  Legal 
Advisory  Board  to  act  in  an  organization  covering  all 
of  the  189  Exemption  Districts  throughout  the  city. 
The  War  Committee  of  the  Bar  cooperated  from  the 
outset  with  the  Permanent  Members  in  selecting  these 
Associate  Members,  and  the  two  organizations  acted 
practically  as  a  single  agency  in  this  work,  as  well  as  in 
equipping  a  central  office  and  the  borough  offices  es- 
tablished in  the  five  boroughs  of  the  city.  The  struc- 
ture thus  erected  necessitated  direction  at  the  central 
office  and  its  equipment  with  a  large  force  of  clerks, 
stenographers,  file  clerks,  etc.  In  every  way  the  War 
Committee  and  the  Legal  Advisory  Board  have  co- 
ordinated their  efforts  in  creating  the  necessary  or- 
ganization. During  the  interval  between  the  drafts  the 
offices  of  the  War  Committee  and  the  Legal  Advisory 
Board  were  consolidated,  but  during  the  active  period 
of  registration  and  classification,  it  became  necessary 
to  separate  the  offices,  and  the  Legal  Advisory  Board 
established  its  headquarters  in  the  Hall  of  Records 
building  in  quarters  furnished  to  it  by  the  city  of  New 
York.  In  those  parts  of  the  country  where  a  Legal  Ad- 
visory Board  has  been  created  for  each  Local  Exemp- 
tion District,  the  work  of  the  Associate  Members  of  the 
Legal  Advisory  Board  cannot  have  been  particularly 
burdensome  or  attended  with  any  substantial  expense 
of  administration.     It  was  not  anticipated,  when  the 


88  PAPERS  AND  ADDRESSES 

law  was  passed,  that  there  would  be  consolidated  in  a 
single  Legal  Advisory  district,  as  there  were  in  this 
city,  189  Exemption  Districts,  with  nearly  two  million 
registrants,  composing  nearly  or  quite  ten  per  cent,  of 
the  registrants  throughout  the  country.  The  necessity 
for  erecting  and  maintaining  during  the  period  of  the 
draft  the  elaborate  machinery  for  such  a  great  district 
was  not  anticipated,  nor  was  provision  made  for  the 
necessary  expense  it  involved.  It  became  necessary, 
therefore,  to  provide  for  the  expense  by  voluntary  con- 
tributions collected  through  the  agency  of  the  War 
Committee. 

The  work  of  the  Legal  Advisory  Boards  is  not  yet 
completed.  The  classification  of  the  remaining  regis- 
trants, numbering  more  than  half  a  million  men  within 
the  city,  will  probably  occupy  two  or  three  months,  and 
during  that  time  the  organization  of  the  Legal  Advis- 
ory Boards  must  be  kept  fully  equipped  and  in  a  high 
state  of  efficiency.  The  continued  cooperation  of  the 
War  Committee  in  this  work  will  be  required,  and 
through  no  other  source  can  the  financial  requirements 
of  the  board  be  supplied. 

It  is  perhaps  suitable  that  the  committee  should  refer 
to  expressions  of  appreciation  of  its  work.  The  Attor- 
ney General  of  the  United  States  wrote  to  the  chairman 
of  the  committee : 

"To  my  mind,  the  movement,  you  speak  of  is  extremely 
important  and  should  be  of  tremendous  assistance  to  the 
government  and  especially  the  department  of  which  I  am 
in  charge. 

"In  my  opinion,  the  finest  sign  of  the  times  is  the  large 
number  of  really  first-class  men  (and  I  am  happy  to  say 
many  lawyers  are  among  them)  who  are  volunteering  their 
services  to  the  country  without  compensation. 


REPORT  OF  THE  WAR  COMMITTEE      89 

"As  time  goes  by,  it  is  not  unlikely  that  my  department 
may  desire  to  avail  itself  of  the  services  of  a  number  of  the 
attornej's  you  have  in  mind  in  assisting  in  the  enforcement  of 
the  terms  of  that  (the  Selective  Service)  law." 

A  captain  in  the  coast  artillery  wrote  with  reference 
to  a  matter  where  the  committee's  action  aided  in  the 
settlement  of  a  question  involving  the  pecuniary  in- 
terest of  many  men  in  the  service : 

"I  feel  that  you  have  rendered  a  service  to  our  country 
that  is  most  valuable,  as  the  question  that  you  have  had  ad- 
justed will  enable  many  men  who  have  had  military  training 
at  the  expense  of  the  federal  government  to  serve  their  coun- 
try in  this  emergency  who  otherwise  would  be  barred  from 
rendering  that  service  under  the  existing  orders  in  regard  to 
dependent  relatives,  and  I  want  you  to  know  that  I  appreciate 
the  service  you  have  rendered  not  only  on  behalf  of  the  men 
in  my  command  who  are  thereby  enabled  to  serve  with  us, 
but  also  on  account  of  the  men  in  other  commands  who  are 
enabled  to  continue  to  serve  their  country  in  the  present 
emergency. 

"The  interest  and  attention  that  you  have  given  to  this 
case  I  will  never  forget  and  I  believe  that  I  will  be  able  to 
discharge  the  duties  of  my  office  the  better  on  account  of  the 
example  of  unselfish  service  that  you  have  set  for  me." 

The  Adjutant  General  of  the  state  acknowledged  the 
cooperation  of  the  committee  in  connection  with  the 
selection  of  his  representative  in  this  city,  as  follows: 

"I  appreciate  most  warmly  the  patriotic  service  which  you 
and  your  committee  have  rendered  and  are  rendering,  and 
I  am  sure  that  whoever  you  recommend  to  fill  this  important 
and  useful  position  in  New  York  City  as  my  representative 
will  be  an  excellent  choice." 

The  work  of  the  committee  will  not  end  with  the  war. 


90  PAPERS  AND  ADDRESSES 

It  will  continue,  and  probably  expand  until  normal 
peace  conditions  prevail.  After  the  war  and  in  the 
period  of  demobilization  of  the  army,  and  on  the  return 
of  the  enlisted  men  to  this  country,  their  affairs  will 
require  the  kind  of  attention  that  the  committee  will 
be  able  to  give,  especially  to  those  who  land  at  this 
port. 

No  systematic  record  of  cases  requiring  legal  as- 
sistance has  been  made.  One  of  our  most  valued  volun- 
teer office  workers  who  has  kept  an  individual  diary  has 
dealt  with  600  matters  between  April  22d  and  Septem- 
ber 2d  of  this  year — apart  from  innumerable  telephone 
conversations  and  minor  matters  not  worthy  of  a 
record.  Our  correspondence  and  other  records  show 
that  since  January  1st  of  this  year,  2,799  cases  have 
been  dealt  with  by  written  advice.  In  addition  there 
are  about  250  cases  monthly  in  which  oral  advice  has 
been  given. 

The  work  of  the  committee  has  required  a  force  of 
paid  assistants,  including  stenographers,  telephone 
operators,  messengers,  etc. 

It  has  been  necessary  to  purchase  a  considerable 
amount  of  office  furniture.  For  a  time  the  committee 
was  able  to  obtain  office  accommodations  free  of  rent, 
but  the  expansion  of  its  work  finally  required  larger 
quarters,  for  which  a  substantial  rental  is  being  paid. 
The  money  to  meet  all  of  these  expenses  has  been  sub- 
scribed exclusively  by  lawyers,  and  it  will  be  necessary 
to  ask  them  to  provide  further  funds  in  the  near  future 
for  the  needs  of  the  committee. 

The  legal  assistance  has  been  rendered  by  a  number 
of  lawyers  who  have  regularly  devoted  a  certain  por- 
tion of  their  time  to  the  work,  attending  at  the  office  at 
agreed  hours,  and  more  and  more  has  the  work  been 
concentrated  in  the  hands  of  a  few  of  these  volunteers. 


REPORT  OF  THE  WAR  COMMITTEE      91 

The  committee  has  had  upon  call  the  services  of  from 
thirty  to  fifty  lawyers  outside  of  the  office  to  whom  per- 
sons needing  legal  assistance  have  been  sent. 

Too  much  praise  cannot  be  accorded  to  Mr.  Mount- 
fort  Mills,  the  Executive  Secretary  of  the  committee, 
who  has  from  its  organization  given  his  entire  time  to 
the  work  and  has  displayed  such  industry,  patience, 
sympathy,  good  sense  and  good  temper,  that  he  is  de- 
serving of  the  thanks  of  the  profession  for  making  it 
an  instrumentality  for  good,  and  of  the  gratitude  of  the 
country  for  having  devoted  himself  to  a  very  useful 
war  work. 

Executive  Committee, 

Henry  W.  Taft, 

Chairman. 

November  1,  1918. 


ASPECTS  OF  BOLSHEVISM  AND 
AMERICANISM 


ASPECTS  OF  BOLSHEVISM  AND 
AMERICANISM  * 

It  would  be  impossible  in  the  time  allotted  to  me  to 
do  more  than  sketch  the  outstanding  features  of  Bol- 
shevism and  to  point  out  how  they  conflict  with  the 
social  and  political  institutions  under  which  we  enjoy 
the  benefits  of  civil  liberty.  Perhaps  I  may  be  of  some 
service,  however,  by  indicating  with  a  few  broad 
strokes  the  fundamental  principles  of  Bolshevism,  and 
pointing  out  how  it  is  at  war  with  every  principle  of 
true  Americanism. 

HISTORICAL    ORIGIN 

Bolshevism  is  based  upon  the  system  of  economic 
philosophy  founded  by  Karl  Marx  and  Frederick  En- 
gels,  who  collaborated  for  many  years.  Their  doc- 
trines were  regarded  as  revolutionary  and  they  were 
driven  first  from  Germany,  where  they  were  born,  and 
then  from  other  continental  countries.  They  finally 
found  refuge  in  England,  where  they  continued  during 
their  lives  to  exercise  an  extraordinary  influence  by 
their  bold  and  able  advocacy  of  revolutionary  theories. 
Their  writings,  and  particularly  those  of  Marx,  were 
most  voluminous.  "Das  Kapital,"  his  great  work,  is 
a  voluminous  work  which  probably  few  people  in  the 
world  have  ever  read,  but  which  among  economists  has 
excited  about  as  much  comment  and  controversy  as 
the  writings  of  Rousseau.  The  influence  of  Marx  on 
the  socialistic  thought  of  the  last  century  was  extra- 
ordinary. 

i  Address  to  the  League  for  Political  Education,  Carnegie  Hall, 
New  York  City,  December  6,  1919. 

95 


96  PAPERS  AND  ADDRESSES 

In  spite  of  statements  of  some  of  the  moderate  Social- 
ists to  the  contrary,  the  Bolshevist  system  is  theoretic- 
ally and  practically  based  upon  the  doctrines  of  Marx 
and  Engels.  Lenin  and  Trotsky  assert  this  to  be  the 
fact ;  and  the  veneration  in  which  Marx  is  held  by  the 
Bolshevists  of  to-day  is  indicated  by  the  fact  that  the 
Bolshevist  regime  do  not  object  to  the  substitution  in 
public  places  of  his  picture  for  that  of  Christ. 

It  has  been  said  that  the  doctrines  of  Marx  were  in- 
spired by  the  consuming  passion  of  hate,  and  a  recent 
writer  has  said  of  him: 

"He  was  without  religion,  having  been  conveyed  from 
Judaism  to  Protestantism  by  his  father  at  the  age  of  six,  and 
having  abandoned  Protestantism  for  aggressive  Atheism  when 
he  grew  to  manhood.  He  was  a  man  embittered  by  persecu- 
tion, enraged  by  antagonism,  soured  by  adversity,  exasperated 
by  suffering.  .  .  .  His  inspiring  and  dominant  passion  was  the 
passion  of  hate — hate  in  its  virulent  and  peculiarly  Germanic 
form  .  .  .  'Das  Kapha!'  (1867)  is  the  enduring  testament 
of  Marxian  animosity.  It  is  a  work  of  dogmatic  mythology, 
the  formula  of  a  new  religion  of  repulsion,  the  Koran  of  the 
class  war." 

THE  MABX  DOCTEINE 

This  doctrine  was  embodied  in  the  so-called  Com- 
munist Manifesto  issued  by  Marx  and  Engels  in  1847. 
It  is  based  upon  the  assumption  that  the  proletariat,  or 
the  laboring  man,  has  no  national  character  and  that 
1 '  law,  morality,  religion  are  to  him  so  many  bourgeois 
prejudices,  behind  which  lurk  in  ambush  just  as  many 
bourgeois  interests."     And  it  adds: 

"The  proletarians  cannot  become  masters  of  the  produc- 
tive forces  of  society,  except  by  abolishing  their  own  pre- 
vious mode  of  appropriation,  and  thereby  also  every  other 
previous  mode  of  appropriation.     They  have  nothing  of  their 


ASPECTS  OF  BOLSHEVISM  9? 

own  to  secure  and  to  fortify;  their  mission  is  to  destroy  all 
previous  securities  for  and  insurances  of,  individual  prop- 
erty." 

There  is  some  obscurity  in  Marx's  theory  as  to  the 
abolition  of  property  in  general,  but  it  is  apparent  that 
he  proposed  to  abolish  all  property  that  belongs  to  the 
bourgeois  class. 

He  adds : 

"The  bourgeois  claptrap  about  the  family  and  education, 
about  the  hallowed  correlation  of  parent  and  child,  becomes 
all  the  more  disgusting  the  more,  by  the  action  of  modern 
industry,  all  family  ties  among  the  proletarians  are  torn 
asunder,  and  their  children  transformed  into  simple  articles 
of  commerce  and  instruments  of  labor." 

Then  upon  the  question  of  nationality  he  says,  "The 
workingmen  have  no  country.  We  cannot  take  from 
them  what  they  have  not  got." 

Marx  does  not  deny  that  Communism  of  his  form 
abolishes  all  religion  and  all  morality,  and  makes  no 
attempt  to  constitute  them  on  a  new  basis.  He  be- 
lieves that  political  power  is  merely  the  organized 
power  of  one  class  for  oppressing  another.  He  dis- 
misses with  contempt  the  economists,  philanthropists, 
humanitarians,  improvers  of  the  conditions  of  the 
working  class,  organizers  of  charity,  members  of  the 
Society  for  the  Prevention  of  Cruelty  to  Animals, 
temperance  fanatics  and  "hole  and  corner"  reformers 
of  every  imaginable  kind.  The  Manifesto  closes  with 
these  ominous  words: 

"The  Communists  disdain  to  conceal  their  views  and  aims. 
They  openly  declare  that  their  ends  can  be  attained  only  by 
the  forcible  overthrow  of  all  existing  social  conditions.  Let 
the  ruling  classes  tremble  at  a  Communistic  revolution.     The 


98  PAPERS  AND  ADDRESSES 

proletarians  have  nothing  to  lose  but  their  chains;  they  have 
a  world  to  win. 

"Workingmen  of  all  countries,  unite." 

Wilhelm  Liebknecht,  interpreting  Marx,  says  that 
" socialism  and  ethics  are  two  separate  things." 

LENIN  AND  TROTSKY 

The  most  influential  leaders  of  Bolshevism  have  been 
Nicolai  Lenin,  whose  real  name  is  Vladimir  Ulianov, 
and  Leon  Trotsky,  whose  real  name  is  Leon  Bronstein. 
The  assumption  of  a  false  name  has  been  quite  common 
among  Russian  revolutionists  and  has  no  particular 
significance.  Lenin  is  of  an  old  Russian  family  of  the 
landed  gentry  class,  his  father  having  been  a  local 
judge.  He  is  about  fifty  years  of  age,  has  had  a  uni- 
versity education,  is  an  economist  of  distinction,  having 
been  the  author  of  works  on  Russian  economics  which 
have  attracted  wide  attention.  His  elder  brother  killed 
a  civil  officer  of  high  rank  and  was  hanged  for  the 
offense,  an  episode  which  it  is  thought  has  had  much 
to  do  with  the  radical  views  of  the  surviving  brother. 
Lenin  does  not  come  of  a  Jewish  family.  Trotsky  is  a 
Jew  and  has  traveled  much  throughout  the  world,  hav- 
ing been  the  editor  of  a  Russian  newspaper  in  this 
city  for  some  time.  His  power  in  the  Bolshevist  revo- 
lution came  from  his  talent  as  an  orator  in  influencing 
the  people  to  rise.  He  is  now  the  Minister  of  War  in 
the  Soviet  cabinet.  His  writings  show  a  remarkable 
power  of  expression.  Others  among  the  Bolshevist 
regime  are  men  of  unusual  intellectual  equipment.  In- 
deed, Lenin  has  sought  out  men  of  force  and  the  power 
of  efficiency.  The  Minister  of  Education,  Lunarch- 
arsky,  is  a  man  of  superior  power  and  is  said  to  have 
made  extraordinary  efforts  to  found  a  system  of  pop- 


ASPECTS  OF  BOLSHEVISM  99 

ular  education,  all,  however,  founded  upon  the  basis  of 
the  Bolshevist  social  and  political  system. 

BOLSHEVIST  TERMINOLOGY 

We  will  not  understand  the  real  nature  of  modern 
Bolshevism  without  some  attention  to  the  meaning  of 
some  of  the  terms  used  in  describing  it.  In  the  first 
place,  the  peoples  of  the  world  are  divided  roughly  into 
the  proletariat  or  proletarians  and  the  bourgeoisie. 
Imperialists  and  aristocrats  form  such  a  small  part  of 
the  population  that  they  are  negligible.  Temporarily 
the  soldiers,  and  especially  the  Cossacks,  had  to  be 
recognized  as  a  part  of  the  ruling  classes. 

The  term  "Bolsheviki"  etymologically  means  "the 
majority. "  At  one  time  in  the  history  of  the  struggles 
of  the  various  revolutionary  groups  in  Kussia  one 
group  upon  some  issue  then  important,  but  now  wholly 
forgotten,  obtained  and  held  for  some  time  a  majority 
in  the  socialistic  assembly  and  was  for  the  occasion 
called  the  "Bolsheviki."  The  other  group  was  known 
as  the  "Menshevists"  or  "Mensheviki,"  meaning  the 
minority.  Lenin  was  then  of  the  group  of  Bolsheviki. 
Trotsky  was  affiliated  with  another  group.  In  the  sub- 
sequent developments  in  the  socialistic  groups  the  Bol- 
sheviki lost  their  supremacy  and  this  continued  through 
the  first  revolution,  resulting  in  the  government  of 
Kerensky,  which  preceded  that  of  the  Soviet  Republic. 
During  all  of  that  time  Lenin  and  Trotsky  and  their 
associates  were  in  the  minority,  but  they  clung  to  the 
name,  Bolsheviki,  although  it  no  longer  signified  that 
it  was  the  majority  party.  Indeed  it  was,  until  shortly 
before  the  fall  of  Kerensky,  in  a  small  minority. 

The  "proletariat"  is  the  great  body  of  the  working 
people, — those  who  work  with  their  hands  with  no  ex- 
pectation of  anything  beyond  a  wage  which  will  supply 


100  PAPERS  AND  ADDRESSES 

their  daily  needs.  The  Bolshevist  loves  to  describe 
the  proletariat  as  being  the  great  exploited  class ;  that 
is,  the  class  whose  labor  has  been,  in  the  history  of  the 
world,  exploited  for  the  sole  benefit  of  the  employers, 
who  are  their  oppressors. 

The  "bourgeoisie"  are,  roughly  speaking,  the  great 
middle  class,  including  those  engaged  in  professions  of 
all  kinds,  manufacturers,  shopkeepers,  large  and  small, 
farmers  owning  their  lands  or  employing  laborers,  and 
all  persons  having  any  income,  however  small,  from  in- 
vested property  of  any  kind.  At  this  point  it  is  suffi- 
cient to  say  that  a  small  shopkeeper  in  Avenue  A, 
earning  a  bare  existence  for  himself  and  his  family,  or 
a  woman  school-teacher,  who  by  dint  of  strict  economy 
has  purchased  a  hundred  dollar  Liberty  Bond,  or  a 
small  truck  farmer  owning  a  farm  of  ten  acres  on  which 
he  supports  his  growing  family,  or  a  poor  college  pro- 
fessor— all  of  these  would  be  classed  among  the  bour- 
geoisie, excluded,  as  I  shall  show,  from  all  political  and 
social  influence. 

Much  confusion  arises  through  the  repeated  asser- 
tions that  the  aim  of  the  Bolshevist  is  to  abolish  all 
capitalistic  forms  of  government.  We  have  witnessed 
in  this  country  great  accumulations  of  capital  by  finan- 
cial and  industrial  corporate  consolidations.  These 
have  been  attended  by  monopolistic  practices  and  other 
abuses,  and  in  spite  of  some  benefits  which  they  have 
undoubtedly  conferred  upon  the  country,  they  have 
been  denounced  where  they  have  unduly  encroached. 
But  when  the  Bolshevist  denounces  the  capitalistic 
form  of  government  he  does  not  refer  alone  to  the  great 
business  enterprises  with  which  we  are  familiar.  He 
refers  to  the  entire  system  under  which  an  opportunity 
is  given  to  the  individual  citizen,  however  humble,  by 
energy,  thrift  and  ability,  to  engage  in  any  kind  of 


ASPECTS  OF  BOLSHEVISM  101 

profession  or  business,  for  the  purpose,  by  his  own 
efforts,  of  advancing  his  position  in  the  world  and  ac- 
cumulating for  the  support  of  his  family  even  the  most 
modest  fortune.  We  pride  ourselves  upon  maintaining 
a  system  which  holds  out  to  the  individual  an  oppor- 
tunity and  encourages  him  to  make  the  best  of  it,  bring- 
ing to  bear  his  physical,  moral  and  intellectual  qualities 
to  achieve  success  in  his  vocation.  It  is  that  which 
the  Bolshevists  denounce  as  the  chief  feature  of  the 
capitalistic  system,  insisting  upon  a  dead  level  of  all 
the  peoples  of  the  world. 

The  official  name  of  the  Bolshevist  government  is  the 
"Russian  Socialist  Federal  Soviet  Republic." 
"Soviet"  is  a  generic  term  meaning  a  union  or  council. 
It  is  formed  on  the  basis  of  occupation  of  its  members, 
like  a  labor  union.  The  government  is  popularly 
known  as  the  "Soviet  Government"  because  it  is  based 
upon  the  representation  of  soldier,  industrial  and  agri- 
cultural Soviets  all  over  Russia,  which  send  delegates  to 
an  All-Russian  Congress  of  Soviets,  which  is  supposed 
to  be  representative  of  the  proletariat.  From  that 
body  an  executive  committee  not  exceeding  200  mem- 
bers is  elected  and  exercises  supreme  legislative  and 
executive  power.  It  forms  a  council  of  commissars 
which  is  entrusted  with  the  general  management  of  the 
affairs  of  the  republic.  It  issues  all  decrees  and  takes 
all  measures  for  their  execution.  As  there  is  no  judic- 
iary department,  or  any  need  of  one,  practically  the  ex- 
ecutive committee  is  the  autocratic  governing  body  of 
the  republic.  That  committee  is  controlled  by  Lenin 
and  Trotsky. 

The  representatives  of  the  government,  both  na- 
tional, provincial  and  local,  are  called  "Commissars," 
and  within  their  jurisdiction  their  powers  are  very 
extensive. 


102  PAPERS  AND  ADDRESSES 

Some  confusion  arises  from  the  use  of  the  words 
"Socialism,"  "Anarchy"  and  "Bolshevism."  The 
Kerensky  government  was  a  Socialist  government. 
While  it  represented  many  of  the  ideas  of  the  Bolshev- 
ists, it  was  far  less  radical.  Particularly  it  did  not 
believe,  as  the  Bolshevists  do,  in  overthrowing  all  ex- 
isting social  and  economic  conditions  by  immediate  or 
direct  action.  Lenin  regarded  its  policy  as  ' '  the  policy 
of  rosewater ' '  and  expressed  nothing  but  contempt  for 
its  professions  that  it  intended  to  bring  about  Social- 
ism. In  this  country  most  of  the  Socialists  do  not 
believe  in  Bolshevism.  Anarchy  seeks  the  abolition  of 
all  government.  It  is  neither  Socialism,  nor  Bolshev- 
ism, nor  Communism.  Under  Socialism  the  state  is  to 
operate  industries  and  nationalize  property,  but  it  is 
still  to  be  maintained  by  a  strong  government.  Bol- 
shevism as  now  in  effect  is  the  very  antithesis  of  An- 
archism because  it  maintains  a  highly  centralized  and 
autocratic  governmental  organization. 

WHAT    IS    BOLSHEVISM? 

Bolshevism  seeks  to  overthrow  the  entire  social,  in- 
dustrial and  political  system  which  has  existed  since 
the  middle  ages.  It  would  create  a  dictatorship,  with 
the  proletariat  as  a  single  governing  class.  While  it 
does  not  necessarily  destroy  or  banish  the  middle 
classes  or  bourgeoisie,  it  confiscates  their  property 
without  compensation,  deprives  them  of  all  of  their 
political  rights,  and  reduces  them  to  an  intolerable 
slavery.  It  seizes  the  property  of  all  landowners  and 
distributes  it  among  the  proletariat.  It  establishes  a 
despotism  far  more  powerful  and  widespread,  and  far 
more  cruel  in  its  repression  of  individual  opinion  and 
action,  than  ever  existed  under  the  dominion  of  the 
Czars.     It  deprives  the  individual  of  all  hope  of  im- 


ASPECTS  OF  BOLSHEVISM  103 

proving  his  material  condition  in  life,  and  forces  him 
to  be  content  if  his  barest  need  of  food  and  clothing  and 
shelter  is  assured  to  him. 

THE   EIGHTS  OF   PROPERTY 

In  order  to  secure  the  support  of  the  poorer  peas- 
antry the  Bolshevists  seized  all  agricultural  lands,  not 
by  confiscation,  because  Lenin  said  that  was  a  juridical 
process,  but  by  the  direct  revolutionary  action  of  the 
peasants  themselves.  The  poorer  peasantry  were  put 
in  possession  not  only  of  the  lands  of  the  great  land- 
owners, but  also  of  the  land  of  the  smaller  holders  who 
had  by  thrift  and  industry  themselves  acquired  a  few 
acres.  The  shops  of  the  small  merchants  everywhere 
were  also  seized  by  the  government  and  nationalized 
without  compensation. 

Lenin  says  of  the  small  farmers  that,  after  all,  they 
are  " simply  another  variety  of  capitalists";  while  of 
small  merchants  Trotsky  says : 

"Your  little  shopkeeper  is  a  sober-minded  man;  his  chief 
abhorrence  is  'taking  a  risk.'  Yet  he  has  at  the  same  time 
a  gorgeous  imagination :  every  little  shopkeeper  expects  to 
become  a  Rothschild.  This  combination  of  an  ansemic  sobriety 
with  an  impotently  riotous  imagination  is  the  very  essence 
of  the  petit  bourgeois  policy." 

The  government  seized  all  live  stock  and  equipment 
of  agricultural  lands,  of  farmers,  large  and  small  alike, 
turning  it  over  to  the  poorer  peasantry  to  be  worked 
by  them  for  their  daily  support.  Under  no  circum- 
stances, however,  was  the  peasant  to  be  permitted  to 
employ  laborers  or  to  work  the  land  for  his  own  profit, 
being  entitled  only  to  the  barest  support  for  himself 
and  his  family. 


104  PAPEBS  AND  ADDRESSES 

In  the  cities  all  factories  and  other  property,  includ- 
ing the  banks,  was  seized  and  nationalized. 

The  entire  doctrine  of  private  property  upon  which 
our  system  of  democratic  government  is  based  was  thus 
abolished  under  the  Bolshevist  system,  and  all  incen- 
tive to  thrift  and  conservatism,  and  all  motive  for  im- 
proving man's  physical,  mental  and  moral  condition, 
through  individual  initiative,  were  swept  away. 

WRITTEN   LAWS 

A  few  references  to  the  constitution  and  decrees  of 
the  Soviet  Government  will  show  some  other  ideas 
which  it  is  sought  to  put  into  practical  operation : 

1.  There  is  to  be  universal  military  training,  but  only  the 
workers  are  to  have  arms.  The  non-working  elements,  how- 
ever, may  be  forced  to  do  other  military  duty. 

2.  Citizenship  is  granted  to  foreigners  without  complicated 
formality,  which  means  that  the  proletariat  of  other  coun- 
tries are  to  be  welcomed  into  Russia  to  strengthen  the 
Soviet  regime. 

3.  The  right  to  use  land  (sub-surface  deposits,  waters,  for- 
ests and  fundamentally  natural  resources)  cannot  be  obtained 
through  purchase,  rental,  inheritance  or  any  other  private 
transaction. 

4.  The  right  to  use  land  is  not  transferable.  All  arrange- 
ments by  which  the  use  of  land  is  obtained  secretly  are 
prohibited. 

5.  Every  citizen  may  profess  any  religion  or  none  at  all. 
Religious  or  judicial  oaths  are  abolished.  A  solemn  promise 
is  all  that  is  necessary  in  any  case.  No  church  or  religious 
society  has  the  right  to  own  property. 

6.  All  banking  business  is  made  a  state  monopoly,  and  all 
existing  banks,  public  or  private,  are  nationalized. 

7.  All  courts  and  lawyers  are  abolished.  People's  courts 
are  set  up.  They  are  to  be  governed  by  the  law  of  the  former 
government  "only  in  so  far  as  those  laws  are  not  annulled 


ASPECTS  OF  BOLSHEVISM  105 

by  the  revolution,  and  do  not  contradict  the  revolutionary- 
conscience  and  revolutionary  conception  of  right." 

8.  Marriage  may  be  annulled  by  the  petition  of  both  par- 
ties or  even  of  one  of  them. 

9.  Inheritance,  whether  by  law  or  by  will,  is  abolished, 
and  upon  the  death  of  an  owner  all  his  property  of  all 
kinds  becomes  the  property  of  the  government. 

10.  No  distinction  is  made  between  the  relationship  that 
arises  within  wedlock  and  that  which  arises  out  of  wedlock. 

THE  ATTITUDE   TOWAKDS   THE   BOURGEOISIE 

There  is  to  be  a  "stern  and  unrelenting  dictatorship 
toward  the  bourgeoisie."  The  dictatorship  is  to  be 
enforced  by  the  Red  Army.  Against  moderate  Social- 
ism the  proletarian  revolution  waged  a  merciless  and 
uncompromising  struggle  and  they  made  no  secret  that 
any  counter-revolution  was  to  be  suppressed  by  the 
"merciless  use  of  mass  terror."  Precisely  how  far 
this  terror  was  extended  it  is  impossible  to  ascertain. 
But  there  is  little  doubt  that  the  slightest  suspicion  of 
counter-revolutionary  movements  led  to  the  shooting 
on  the  spot  of  thousands  and  thousands  of  entirely 
innocent  Russian  citizens. 

Compulsory  labor  was  carried  to  the  point  of  abso- 
lute slavery.  The  bourgeoisie,  persons  who  had  been 
in  good  condition  in  life,  were  set  to  work  cleaning  the 
streets.     For  this  they  received  no  compensation. 

THE  PRESS  AND  PUBLIC  MEETINGS 

A  committee  was  formed  called  the  Committee  to 
Combat  the  Counter-Revolution.  This  committee  dealt 
with  a  variety  of  subjects,  including  the  press,  public 
meetings  and  compulsory  labor. 

At  the  beginning  of  the  Bolshevik  regime,  all  of  the 
newspapers  in  Russia  were  placed  under  the  control  of 
a  Revolutionary  Tribunal  of  the  Press.     This  took  the 


106  PAPERS  AND  ADDRESSES 

place  of  the  courts,  and  from  its  decrees  no  appeal  was 
permitted.  It  was  created  by  decree  of  the  Executive 
Committee  and  not  by  legislation.  It  had  jurisdiction 
of  any  ''attempt  upon  the  rights  and  interests  of  the 
revolutionary  people."  This  gave  it  an  enormous,  un- 
controlled and  autocratic  power,  which  it  could  exercise 
without  any  restraint  whatsoever,  for  the  suppression 
of  all  unfavorable  comments  in  the  newspapers. 

This  was  followed  by  a  decree  that  no  advertisements 
of  any  kind  were  to  be  published  except  in  official  jour- 
nals. This,  of  course,  made  it  impossible  to  maintain 
any  independent  newspaper.  It  is  not  surprising  that, 
in  one  province,  out  of  254  journals,  247  were  thus 
suppressed. 

In  addition  to  this  the  sale  of  newspapers  was  na- 
tionalized so  that  nobody  could  purchase  newspapers 
for  sale  except  from  government  agents. 

Meetings  and  communications  to  the  government  by 
petition  were  held  under  the  strictest  control  under  a 
penalty  of  being  regarded  as  counter-revolutionary. 

It  was  decreed  that  "any  person  that  shall  speak 
against  the  rule  of  Soviets  shall  be  brought  before  the 
Revolutionary  Tribunal. ' ' 

It  was  also  decreed  that  no  information  as  to  the 
charge  should  be  given  and  no  one  allowed  to  see  the 
prisoners. 

POLITICAL    POWER    UNDER    THE    BOLSHEVIST   REGIME 

As  I  have  said,  according  to  the  theory  of  Marx  and 
Lenin  the  class-conscious  proletariat  consists  of  the 
mass  of  the  people  who  work  with  their  hands  and  who, 
under  the  old  system,  were  employed  by  the  bour- 
geoisie. They  profess  to  give  to  all  the  proletariat 
equal  rights  and  privileges.  As  a  matter  of  fact,  how- 
ever, the  entire  Marxian  theory  is  based  upon  the  dom- 


ASPECTS  OF  BOLSHEVISM  107 

inance  of  the  industrial  Soviets  composed  of  the  prole- 
tariat in  the  large  cities,  which  are  compact  and  easily 
manipulated  bodies.  It  is  obvious  from  the  writings 
of  both  Marx  and  Lenin  that  their  sympathies  are 
with  these  urban  industrial  Soviets,  and  that  it  was 
largely  as  a  matter  of  expediency  that  they  extended 
their  system  so  as  to  include  the  soldiers  and  the  poorer 
peasants.  The  soldiers  composing  what  is  called  the 
"Red  Army"  are  absolutely  necessary  for  the  suc- 
cess of  the  schemes  of  the  Soviet  Government.  With- 
out force  it  could  not  be  maintained  for  a  day.  Not 
only  do  they  give  to  the  soldiers  the  greatest  political 
power  but  they  maintain  them  and  surround  them  with 
more  material  comforts  than  any  other  class  in  the 
country.  "With  the  great  mass  of  agricultural  workers, 
numbering  perhaps  135,000,000,  neither  Marx  nor 
Lenin  had  any  sympathy.  Marx  is  said  to  have  re- 
garded them  with  little  less  than  contempt,  and  the 
present  Bolshevist  regime  has  afforded  ample  evidence 
that  they  have  taken  the  peasant  into  account  only  be- 
cause in  no  other  way  could  they  impose  their  system 
upon  the  country.  Indeed,  it  is  extremely  doubtful 
whether  Lenin  himself  has  any  really  sympathetic  con- 
cern for  the  rights  of  any  part  of  the  proletariat,  and 
evidence  is  abundant  that  he  thinks,  as  the  ruling 
classes  of  the  Russia  of  the  Czars  themselves  thought, 
that  the  Russian  people  can  only  be  governed  by  an 
autocratic  government.  And  the  government  now  pre- 
sided over  by  Lenin  is  of  a  highly  centralized  and 
despotic  character.  While  he  and  his  associates  de- 
scribe it  as  based  on  the  dictatorship  of  the  proletariat, 
the  fact  is  that  it  is  a  dictatorship  of  a  small  minority 
of  able,  determined  and  highly  trained  individuals 
over  the  proletariat  itself,  which  it  deceives  and  mis- 
leads.    We  may  well  believe  the  statement  attributed 


108  PAPERS  AND  ADDRESSES 

to  Lenin  that  from  his  experience  in  the  establishment 
of  the  new  government,  he  f onnd  that  of  every  hundred 
of  the  Bolsheviks  that  he  had  to  work  with,  sixty  were 
imbeciles,  thirty-nine  were  rascals  and  one  was  a  Bol- 
shevik by  conviction. 

And  how  are  Lenin  and  his  associates  able  to  impose 
upon  the  Russian  people  the  centralized  Soviet  Govern- 
ment? 

This  is  accomplished  chiefly  by  granting  to  the  Red 
Army  and  to  the  industrial  workers  in  the  cities  an 
enormous  preponderance  of  political  power.  The 
basis  of  apportionment  of  delegates  to  the  provincial 
Soviets  which  elect  delegates  to  the  National  Soviet  is 
so  arranged  that  for  each  vote  of  the  poorer  peasantry 
the  factory  or  industrial  worker  in  the  city  has  eight 
votes  while  the  soldier  has  eighty  votes;  or,  to  put  it 
in  another  way,  the  soldier  has  one  vote,  the  urban  fac- 
tory or  industrial  worker  one-eighth  of  a  vote  and  the 
peasant  one-eightieth  of  a  vote.  In  the  All-Russian 
Congress  there  is  one  delegate  for  every  25,000  of  the 
proletariat  living  in  the  cities  and  only  one  such  dele- 
gate for  every  125,000  of  the  peasant  proletariat  living 
in  the  country.     No  wonder  Lenin  says : 

"If  the  lands  are  confiscated,  so  long-  as  the  proletariat  rule 
in  the  great  centers  and  the  political  power  is  handed  over 
to  the  proletariat,  the  rest  will  take  care  of  itself." 

Thus,  by  bribing  the  soldiers  with  political  power  and 
personal  favoritism,  by  using  the  public  funds  collected 
by  the  confiscation  of  private  property  for  the  support 
of  the  Red  Army,  and  by  multiplying  the  power  of  the 
Soviets  in  the  great  industrial  centers,  it  has  resulted, 
as  Lenin  himself  has  boasted,  that  the  political,  indus- 
trial and  social  control  of  180,000,000  of  people,  of 
which  more  than  135,000,000  are  peasants,  has  been 


ASPECTS  OF  BOLSHEVISM  109 

turned  over  to  the  despotic  power  of  not  more  than 
200,000  industrial  workers  in  the  cities. 

To  this  grossly  unequal  basis  of  representation  there 
is  added  a  complete  exclusion  from  all  political  power 
of  the  middle  and  higher  classes  of  the  community. 

Thus,  there  are  disfranchised  and  disqualified  from 
holding  office  all  who  employ  hired  labor  for  profit  or 
who  have  any  income  derived  without  work,  private 
merchants,  trade  and  commercial  brokers,  ecclesiastics 
of  all  kinds,  and  all  persons  deprived  by  any  local 
soviet  of  their  rights  as  citizens  on  account  of  "selfish 
or  dishonorable  offenses  for  the  period  fixed  by  the 
sentence, "  a  device  by  which  a  local  soviet  has  the 
power  to  deprive  a  citizen  of  the  right  to  vote  for  any 
capricious  reason. 

There  are  also  excluded  from  the  right  of  franchise 
lawyers,  educators,  bankers,  managers  of  industry, 
commercial  travelers,  experts,  accountants,  editors,  au- 
thors and  all  other  persons  engaged  in  occupations 
classified  as  non-essential  or  non-productive.  A  small 
farmer  who  employs  a  single  hired  helper  is  deprived 
of  his  vote. 

WHY  SHOULD  AMERICA  CONCERN  ITSELF  WITH  BOLSHEVISM ? 

What  has  America  to  do  with  the  settlement  of  the 
internal  affairs  of  the  Russian  people?  Have  they  not 
the  right  to  establish  any  government  satisfactory  to 
them? 

So  long  as  the  Russian  people  confine  their  govern- 
mental activities  within  their  own  country,  not  only 
under  the  rules  of  international  law,  but  also  under  our 
long-established  policy  concerning  our  relations  to  for- 
eign countries,  we  should  let  the  Russian  people  work 
out  their  own  salvation. 

But  the  policy  of  the  Soviet  Republic  is  governed  by 


110  PAPERS  AND  ADDRESSES 

the  Bolsheviki  and  they  make  no  secret  that  their  gov- 
ernmental operations  are  not  to  be  confined  within  the 
boundaries  of  Russia. 

THE  INTERNATIONAL  ASPECT  OF  BOLSHEVISM 

Lenin,  Trotsky  and  all  of  the  leaders  of  the  Bolshev- 
ist Government  declare  that  Bolshevism  cannot  be 
maintained  unless  all  of  the  rest  of  the  world  is  made 
Bolshevist.  They  have  instituted  an  aggressive  cam- 
paign among  all  classes  in  other  countries  of  the  world 
and  are  seeking  to  spread  their  propaganda  for  the 
avowed  purpose  of  overturning  all  existing  govern- 
ments. 

Trotsky  says : 

'Internationalism  in  our  eyes  is  not  an  abstract  notion 
existing  only  to  be  betrayed  at  every  moment  ...  but  an 
immediately  dominant,  profoundly  practical  principle.  Per- 
manent, decisive  successes  are  not  conceivable  for  us  without 
an  European  revolution." 

An  appeal  by  Trotsky,  Lenin  and  Tschitcherin,  Com- 
missar for  Foreign  Affairs,  on  August  1,  1918,  stated 
that  the 

"  Salvation  of  the  Russian  Revolution  constitutes  a  com- 
mon interest  of  the  proletariat  of  all  countries.  Forced  to 
war  against  Entente  capital,  which  wishes  to  add  new  chains 
to  the  chains  already  imposed  upon  us  by  Germany,  we  turn 
to  you  with  the  cry: 

"  'Long  live  the  solidarity  of  the  workers  of  the  whole 
world !  Long  live  the  French,  English,  American  and  Italian 
proletariat,  together  with  the  Russian !  Down  with  the  rob- 
bers of  International  Imperialism !  Long  live  the  Inter- 
national Revolution!     Long  live  the  peace  of  the  peoples!'  " 

The  constitution  of  the  Soviet  Republic  adopts  a 


ASPECTS  OF  BOLSHEVISM  111 

coat  of  arms  inscribed  with  these  words,  "Russian 
Socialist  Federal  Soviet  Republic.  Workers  of  the 
World  Unite." 

The  very  existence  of  the  Bolshevist  Government, 
professing  as  it  does  that  it  cannot  survive  unless  it 
brings  all  the  world  under  its  sway,  is  a  menace  to 
mankind  in  every  part  of  the  globe.  No  organized  gov- 
ernment can  rest  without  adopting  the  most  efficient 
defensive  measures.  Our  American  Commonwealth  is 
not  beyond  the  reach  of  the  cunning  and  insidious 
propaganda  which  is  only  too  plainly  being  spread 
throughout  the  land. 

BOLSHEVISM  AND  AMERICA 

The  fundamental  principles  upon  which  Bolshevism 
is  based  are  irreconcilably  at  war  with  the  Anglo-Saxon 
idea  of  civil  liberty,  because  they  are  predicated  upon 
inequality  of  opportunity  of  citizens,  deprivation  of 
personal  and  property  rights  and  cruel  and  oppressive 
despotism. 

However  much  we  may  sympathize  with  the  Russian 
people,  so  long  as  they  are  forced  to  tolerate  the  soviet 
form  of  government,  their  government  must  of  neces- 
sity be  at  war  with  the  social,  industrial  and  political 
institutions  of  every  other  government  on  earth.  The 
constitution  and  decrees  under  which  the  Executive 
Committee  of  the  All-Russian  Soviet  Government  acts 
are  themselves  in  effect  a  declaration  of  war  against 
every  nation  on  earth  because  they  assert  the  necessity 
of  overthrowing  every  existing  government.  They 
preclude  diplomatic  relations;  they  compel  the  expul- 
sion or  effective  surveillance  of  so-called  diplomatic 
representatives  that  the  Soviet  Republic  may  send  out, 
and  they  require  the  complete  suspension  of  all  com- 


112  PAPERS  AND  ADDRESSES 

mercial  and  financial  relations  with  the  government  and 
the  people. 

WHAT  IS  MEANT  BY  AMERICAN  DEMOCRACY 

From  the  time  when,  in  1215,  the  barons  extorted 
Magna  Charta  from  King  John,  we  have  been  building 
up  through  the  development  of  the  English  Constitu- 
tion and  by  our  own  Declaration  of  Independence  and 
Federal  Constitution,  a  social  and  political  system 
under  which  the  individual  citizen  enjoys  in  the  highest 
degree  all  of  the  benefits  connoted  in  the  term,  civil 
liberty. 

By  the  Declaration  of  Independence,  it  is  declared 
that  "All  men  are  created  equal,"  meaning  that  each 
citizen  is  entitled  to  the  opportunity  enjoyed  by  every 
other  citizen  to  engage  in  any  pursuit  he  may  choose, 
and  that  all  men  are  "endowed  by  their  Creator  with 
certain  inalienable  rights,  that  among  these  are  life, 
liberty  and  the  pursuit  of  happiness;  that  to  secure 
these  rights  governments  are  instituted  among  men, 
deriving  their  just  powers  from  the  consent  of  the 
governed.  ..." 

By  the  Constitution  the  individual  is  guaranteed  by 
ample  provisions  against  encroachments  upon  his 
natural  and  legal  rights.  He  is  guaranteed  the  right  to 
trial  by  jury;  his  freedom  of  speech  and  that  of  the 
press  cannot  be  abridged ;  his  right  to  assemble  and  to 
petition  the  government  for  a  redress  of  grievances  is 
preserved ;  he  is  secured  against  unreasonable  searches 
and  seizures ;  he  cannot  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law ;  and  his  private 
property  cannot  be  taken  for  public  use  without  just 
compensation.  An  accused  person  is  entitled  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  and 
to  be  confronted  with  witnesses  against  him.     Cruel 


ASPECTS  OF  BOLSHEVISM  113 

and  unusual  punishments  are  not  to  be  inflicted,  and  all 
persons  are  to  be  assured  the  equal  protection  of  the 
laws. 

These  are  some  of  the  rights  which  have  been  re- 
garded as  the  essentials  of  Anglo-Saxon  liberty,  and 
have  existed  for  centuries.  The  establishment  of  the 
system  now  in  force  in  Kussia  would  practically  sweep 
them  all  away. 

Moreover,  the  Bolshevist  entirely  eliminates  from 
his  ideology  anything  corresponding  to  our  love  of 
country  or  our  patriotism.  He  substitutes  for  it  what 
he  calls  the  international  dictatorship  of  the  proletariat. 
He  says  that  Bolshevism  requires  a  "United  States  of 
Europe"  and,  in  place  of  the  " antiquated  national 
fatherland,"  a  new  fatherland  of  "the  Republican 
Europe,  unless  the  proletariat  alone  would  be  enabled 
to  revolutionize  and  to  reorganize  the  whole  world. 
One  axis  of  the  world  reorganization  of  industry  is  to 
be  the  United  States  of  Europe  and  the  other  United 
States  of  America."  The  only  moral  or  intellectual 
sentiment  upon  which  this  is  based  is  what  the  Marxist 
calls  the  "class  consciousness"  of  the  proletariat,  and 
that  sentiment  has  no  moral  or  intellectual  motive  ex- 
cept a  determination  to  obtain  social,  industrial  and 
political  power,  and  to  use  it  for  the  purpose  of  com- 
plete destruction  of  the  personal  and  property  rights  of 
every  other  class  in  the  community.  It  is  based  upon 
no  elevating  or  ennobling  principle.  In  its  practical 
application  it  has  led  to  a  cruel  and  degrading  present 
and  it  promises  nothing  but  a  dismal  and  hopeless 
future. 

DANGER  TO   AMERICA 

Fortunately  the  danger  of  a  complete  overturning  of 
our  institutions  is  not  great.    When  the  horrid  monster 


114  PAPERS  AND  ADDRESSES 

of  Bolshevism  attempts  to  invade  this  country  it  will 
find  itself  confronted  with  a  land  where  eighteen  mill- 
ions of  houses  are  occupied  by  twenty-one  millions  of 
families,  where  nine  million  families  own  their  own 
homes,  where  twelve  million  people  have  deposits  in 
mutual  stock  or  Postal  Savings  Banks  to  an  aggregate 
amount  of  $6,500,000,000,  where  6,500,000  farms  have 
an  aggregate  value  of  $41,000,000,000,  and  yield  an  an- 
nual product  of  more  than  $8,500,000,000;  where 
schools  are  maintained  at  an  annual  expense  of  $650,- 
000,000,  with  an  attendance  of  more  than  20,000,000 
children;  where  3,000  public  libraries  have  on  their 
shelves  more  than  75,000,000  books,  and  where  the 
total  wealth  of  the  country,  in  an  advanced  state  of 
profitable  cultivation,  amounts  to  not  less  than  $225,- 
000,000,000. 

The  destructive  principle  of  Bolshevism  can  never 
make  a  substantial  breach  in  such  defenses  as  these, 
but  if  not  actively  combatted  it  can  make  progress 
which  will  produce  widespread  disturbance  and  unrest, 
and  its  indirect  effect  is  already  doing  vast  damage  to 
the  interests  of  the  people  of  this  country.  Early  pre- 
paredness and  a  determined  policy  to  exclude  the 
agents  of  Bolshevism  will  save  us  in  the  future  enor- 
mous effort,  immense  expense  and  much  social  and  in- 
dustrial unrest. 

DANGER   FROM    INDISCRIMINATING   PERSONS 

There  are  in  this  community  many  worthy  people 
always  ready  to  seize  upon  new  ideas  for  the  uplifting 
of  the  human  race.  Some  of  them  are  not  blessed 
with  the  power  of  discrimination  and  permit  their 
hearts  to  lead  them  they  know  not  whither.  From 
such  people  we  hear  expressions  of  sympathy  for 
the  Russian  people,  coupled  with  statements  showing 


ASPECTS  OF  BOLSHEVISM  115 

their  ignorance  of  the  real  character  of  the  Bolshevist 
regime.  But  they  leave  the  impression  with  those  less 
informed  that  they  have  studied  the  Bolshevist  system 
and  that  they  approve  its  principles. 

I  have  read  statements  of  American  citizens  of  high 
intelligence  who  have  visited  Russia  and  have  seen  in 
a  limited  field  the  operations  of  the  Soviet  Govern- 
ment. Sympathizing  with  the  Russian  people  in  their 
desire  to  be  emancipated  from  the  fearful  oppression 
to  which  they  were  subjected  under  the  rule  of  the 
Czars  they  have  been  only  too  willing  to  accept  the 
assurances  and  the  predictions  of  the  soviet  leaders 
that  their  government  would  produce  an  ideal  condi- 
tion. 

Such  persons  as  these  have  returned  to  this  country 
and  have  told  the  people  in  the  magazines  and  by  word 
of  mouth  some  of  the  things  that  they  observed.  Most 
of  them  have  failed  to  perceive  that  the  Soviet  Republic 
is  founded  on  fundamentally  vicious  principles  which 
are  radically  at  variance  with  all  our  preconceived  no- 
tions of  civil  liberty  and  social  justice. 

Failing  to  state  the  case  fully,  these  agitators  have 
by  indirection  at  least  given  the  impression  that  they 
approved  the  principles  of  the  Soviet  Republic,  and 
their  standing  in  the  community  has  been  such  that 
their  statements  have  tended  to  do  infinite  harm. 
Such  people  as  these  add  their  efforts  to  the  Anarchist, 
the  Bolshevist  and  the  radical  Socialist,  and  all  these 
combined  are  contributing  to  a  propaganda  which  is 
tending  to  undermine  our  most  cherished  social  and 
political  institutions  and  is  having  the  effect  of  pro- 
ducing widespread  unrest  among  the  poor  and  the 
ignorant,  especially  those  of  foreign  birth. 


116  PAPERS  AND  ADDRESSES 

WHAT    IS    THE   REMEDY? 

Forceful  government  repression  of  Bolshevist  propa- 
ganda will  undoubtedly  be  necessary.  But  our  demo- 
cratic institutions  are  not  well  adapted  to  the  eradica- 
tion by  such  means  of  agitation  even  when  it  is  sedi- 
tious. We  must  not  neglect  other  defensive  measures 
such  as  the  education  of  the  people  as  to  the  character 
of  the  Bolshevist  movement.  No  group  in  the  com- 
munity can  be  so  efficient  in  conducting  such  a  cam- 
paign of  education  as  the  League  for  Political  Educa- 
tion. But  we  must  also  arouse  Congress  and  state 
legislatures  to  enact  laws  adapted  to  meet  the  menace, 
and  urge  officers  of  the  state  and  federal  government 
to  enforce  them. 

LEGAL  EEMEDIES 

In  a  letter  recently  written  by  the  Attorney  General 
of  the  United  States  to  the  Senate  much  interesting  in- 
formation has  been  furnished  to  the  country. 

It  appears  that  his  department  has  a  list  of  sixty 
thousand  radically  inclined  individuals  in  this  country; 
that  202  radical  newspapers  in  foreign  languages,  and 
106  of  such  newspapers  in  the  English  language,  are 
published  in  this  country,  and  that  144  radical  news- 
papers published  in  foreign  countries  are  distributed 
to  subscribers  here.  In  addition,  hundreds  of  books, 
pamphlets  and  other  publications  receive  wide  circula- 
tion. A  wave  of  radicalism  swept  over  the  country 
after  the  armistice  was  signed,  as  is  evidenced  by  the 
fact  that  since  that  time  about  fifty  radical  newspapers 
have  commenced  publication.  A  large  number  of  these 
papers  advise  the  destruction  of  our  government  and 
urge  their  readers  to  prepare  for  the  coming  revolu- 
tion.   As  many  of  these  papers  have  no  advertising 


ASPECTS  OF  BOLSHEVISM  117 

matter,  they  are  probably  supported  from  outside 
sources.  In  addition  to  written  matter  we  need  no 
assurance  from  the  Attorney  General  that  there  is  free 
oral  expression  of  radical  views.  The  need  of  some 
kind  of  repressive  measures  is  thus  very  evident. 

But  the  condition  of  the  state  and  federal  laws,  or 
the  measures  taken  by  public  officials  for  their  enforce- 
ment, do  not  seem  to  be  effective. 

The  Attorney  General  is  of  the  opinion  that  an  at- 
tempt to  overthrow  our  government  is  not  a  crime,  un- 
less it  amounts  to  treason,  rebellion  or  seditious  con- 
spiracy ;  and  that  most  of  the  propaganda  is  not  of  that 
character;  that  the  preaching  of  anarchy  and  sedition 
or  advising  defiance  of  law  is  not  a  crime,  and  that  ad- 
vising and  openly  advocating  the  unlawful  obstruction 
of  industry  and  the  unlawful  and  violent  destruction  of 
property  is  not  a  crime. 

If  the  Attorney  General  is  correct  in  this  opinion  the 
situation  is  certainly  startling.  He  recommends,  and 
the  President  in  his  last  message  urged,  the  passage  of 
a  federal  statute  to  cover  the  situation,  but  seventy 
bills  for  the  same  purpose  were  introduced  in  the  last 
Congress  and  none  was  passed.  Moreover,  the  Attor- 
ney General  does  not  appear  to  be  sanguine  that  the 
federal  government  can  adequately  deal  with  the  sub- 
ject. He  urges  that  Congress  recommend  to  the  sev- 
eral states  the  enactment  of  similar  statutes  so  that 
the  services  of  their  law-enforcing  machinery  may  be 
availed  of.  He  says  that  they  have  at  their  command 
infinitely  greater  forces  than  the  United  States  Gov- 
ernment for  detecting  and  punishing  seditious  acts,  and 
cites  the  case  that  in  New  York  there  are  12,000  police- 
men and  that  the  District  Attorney  has  a  force  of  50 
prosecuting  attorneys.  He  contrasts  this  with  the  fact 
that  under  the  appropriation  granted  by  Congress  to 


118  PAPERS  AND  ADDRESSES 

the  Department  of  Justice  the  maximum  number  of 
men  available  to  the  department  is  limited  to  500  for 
the  entire  United  States. 

But  is  not  the  protection  of  the  American  people 
against  the  effects  of  revolutionary  propaganda  a  mat- 
ter peculiarly  within  the  proper  function  of  the  federal 
government?  And  is  it  not  humiliating  that  the  Attor- 
ney General  is  forced  to  complain  that  funds  are  with- 
held which  are  necessary  for  the  protection  of  our 
fundamental  institutions?  The  annual  estimates  of 
appropriations  for  the  federal  government  amounted 
to  about  $5,000,000,000  for  the  fiscal  year  of  1921  of 
which  only  about  $150,000,000  were  appropriated  for 
the  executive  (White  House  and  government  depart- 
ments) and  the  judicial  departments.  In  such  an 
enormous  aggregate  it  would  seem  that  the  United 
States  Government  could  afford  to  furnish  to  the  De- 
partment of  Justice,  if  that  department  made  the  re- 
quest, a  sufficient  number  of  assistants  for  the  enforce- 
ment of  the  law  to  protect  American  citizens  against 
the  invasion  of  Bolshevism. 

The  First  Amendment  of  the  Federal  Constitution 
prohibits  Congress  from  making  a  law  "  abridging  the 
freedom  of  speech,  or  of  the  press."  Under  this  pro- 
vision the  mere  holding  of  an  opinion  or  even  express- 
ing it  cannot  by  act  of  Congress  be  made  a  crime  except 
in  an  extreme  case.  The  advocacy,  either  orally  or  in 
writing,  of  the  overthrow  of  our  government  and  with 
the  intent  of  accomplishing  that  result,  may  undoubt- 
edly be  made  a  crime  by  act  of  Congress.  The  Attor- 
ney General  may  be  right  that  the  existing  statutes  re- 
lating to  the  subject  are  not  adequate.  The  question 
does  not  seem  to  have  been  pushed  for  decision  in  the 
higher  courts.     But  if  more  legislation  is  necessary, 


ASPECTS  OF  BOLSHEVISM  119 

Congress  should  not  delay  in  enacting  it  and  appropri- 
ating funds  sufficient  for  its  effective  execution. 

The  exceptional  character  of  the  Bolshevist  menace 
makes  it  a  matter  of  national  concern.  The  federal 
government  should  primarily  attempt  to  protect  us 
against  its  insidious  effects.  We  should  not  be  de- 
pendent upon  state  action,  and  yet  where,  as  in  New 
York  State,  there  already  exists  an  adequate  statute, 
the  power  of  our  state  government  ought  to  be  brought 
to  bear  to  abate  the  evil.  The  New  York  Anarchy 
Statute,  passed  on  account  of  the  assassination  of  Pres- 
ident McKinley,  is  probably  sufficient.  We  hear  much 
of  investigations  and  are  startled  by  disclosures.  But 
there  seem  to  be  few  prosecutions  and  few  convictions. 

DEPORTATION 

Prosecution  under  criminal  laws  is  not  the  only 
remedy  open  to  the  federal  government. 

The  deportation  of  objectionable  aliens  is  a  remedy 
much  more  expeditious  in  most  cases  and  equally  effec- 
tive. 

The  immigration  laws  as  amended  in  1918  probably 
do  not  need  to  be  amended  to  enable  the  Department  of 
Labor  to  deport  objectionable  aliens.  During  the  war 
such  aliens  were  deported  under  the  Espionage  Act, 
but  that  act  will  probably  not  be  available  in  time  of 
peace.  While  under  the  immigration  law  the  accused 
is  entitled  to  hearings  and  to  be  admitted  to  bail  and 
may  on  a  writ  of  habeas  corpus  get  his  case  into  the 
courts,  it  still  remains  the  fact  that  vigorous  prosecu- 
tion by  the  Department  of  Labor  can  do  much  to  im- 
prove the  situation.  The  administration  by  that  de- 
partment does  not,  however,  appear  to  have  accom- 
plished substantial  results  and  there  is  grave  ground 


120  PAPERS  AND  ADDRESSES 

for  the  opinion  that  in  this  city  the  efforts  of  the  Com- 
missioner of  Immigration  were  not  at  critical  times 
marked  by  much  vigor. 

While  deportation  ought  to  be  an  effective  remedy, 
here  again  the  Attorney  General  complains  that  Con- 
gress refused  appropriations  to  his  department  and  the 
Department  of  Labor  for  the  enforcement  of  the  law. 
The  American  people  are  thus  made  to  suffer  because 
of  a  lack  of  coordination  between  the  executive  and  the 
legislative  departments. 

Too  much  publicity  cannot  be  given  to  this  unfortun- 
ate situation. 


THE  LEAGUE  OF  NATIONS 


VI 
THE  LEAGUE  OF  NATIONS  x 

THE  AMERICAN  VIEW 

The  belief  undoubtedly  pervades  the  mass  of  the 
people  of  the  world  that  now  is  the  time  to  find  a  way  to 
prevent  war  in  the  future.  The  feeling  is  more  or  less 
inarticulate,  but  it  is  none  the  less  widespread  and 
insistent;  and  the  statesmen  in  the  Peace  Council  re- 
alize that  a  serious  effort  must  be  made  to  devise  some 
practicable  method  to  give  it  form  and  effect. 

The  United  States  has  been  the  foremost  nation  of 
the  earth  in  promoting  the  settlement  of  international 
disputes  by  arbitration  and  the  postponement  of  war 
during  the  process.  It  has  seemed  strange,  therefore, 
that  a  definite  project  for  the  avoidance  of  war  should 
have  met  at  first  with  hesitation  and  criticism  in  this 
country.  But  this  attitude  has  been  much  changed  by 
open  discussion  and  the  burning  out  of  the  fires  of 
partisanship ;  and  the  solicitude  lest  our  implication  in 
European  affairs  should  result  in  an  undue  surrender 
of  our  independence  has  been  largely  removed. 

By  long-established  national  habit,  based  on  the 
warnings  of  Washington  and  Jefferson  against  en- 
tangling alliances,  we  have  come  to  attach  vital  import- 
ance to  the  condition  of  political  isolation  which  our 
geographical  remoteness  has  enabled  us  to  maintain. 
But  the  present  discussion  is  making  it  increasingly 
clear  that  the  wise  policy  of  a  century  ago  is  not  appli- 
cable to  the  conditions  of  to-day,  first,  because  through 
cable  communications  and  quick  ocean  transportation, 

i  Reprinted  from  a  series  of  articles  published  in  the  New  York 
Times  of  March  24-25,  and  April  4,  1919. 

123 


124  PAPERS  AND  ADDRESSES 

the  United  States  has  become  geographically  no  more 
remote  from  the  continent  of  Europe  than  some  of  the 
European  nations  are  distant  from  each  other,  and, 
second,  because  there  no  longer  exist  concerts  of 
powers,  offensive  and  defensive  alliances  and  secret 
dynastic  intrigues,  possible  only  among  autocratic  sov- 
ereigns and  entered  into,  not  to  avoid  war,  but  to  secure 
supremacy  through  the  use  of  force. 

Washington's  warning 

The  Farewell  Address  of  Washington  was  delivered 
in  1796;  the  Revolutionary  War  had  ended  less  than 
fifteen  years  before;  the  French  Revolution  had  over- 
turned French  civilization  and  produced  chaos  and  the 
Napoleonic  wars  were  beginning ;  and  our  own  friendly 
relations  with  France,  based  on  her  generous  and  de- 
cisive assistance  in  the  Revolution,  had  been  seriously 
threatened.  Our  chief  interest  at  that  time  was  to 
create  a  self-sustaining  nation,  not  dependent  upon 
foreign  nations  for  the  continuance  of  its  national 
existence.  Such  a  thing  as  the  formation  of  a  league 
of  nations  to  avoid  war  was  far  from  the  thoughts  of 
the  nations  of  the  world,  and  even  if  it  had  been  at- 
tempted there  would  have  been  little  reason  for  the 
newly  created  American  commonwealth  to  become  a 
party  to  it. 

It  was,  therefore,  obviously  true,  to  use  Washing- 
ton's words,  that  Europe  had  "a  set  of  primary  in- 
terests which  to  us  have  none  or  a  very  remote  relation. 
Hence  she  must  be  engaged  in  frequent  controversies 
the  causes  of  which  are  essentially  foreign  to  our  con- 
cerns. Hence,  therefore,  it  must  be  unwise  in  us  to 
implicate  ourselves  by  artificial  ties  in  the  ordinary 
vicissitudes  of  her  politics  or  the  ordinary  combina- 


THE  LEAGUE  OF  NATIONS  125 

tions  and  collisions  of  her  friendships  or  enmities." 
But  the  situation  which  Washington  thus  visualized 
was  totally  different  from  that  which  now  confronts 
the  world.  The  nations  in  the  Peace  Council  are  not 
striving  to  sustain  some  monarch  upon  a  tottering 
throne,  or  to  establish  the  divine  right  of  kings,  or  to 
secure  a  balance  of  power  by  transforming  the  nations 
of  Europe  into  permanent  armed  camps,  or  to  compel 
weak  nations  to  submit  to  alien  and  oppressive  rulers. 
On  the  contrary,  the  war  and  the  peace  negotiations 
have  been  a  titanic  effort  to  make  all  governments  the 
real  representatives  of  the  people,  to  prevent  military 
autocracy  as  a  principle  of  government  from  ever  again 
arising  to  threaten  the  peace  of  the  world,  and  to  pre- 
serve modern  civilization  from  the  horrors  of  Anarchy 
and  Bolshevism. 

THE    NECESSITY   FOR   MAKING   THE   LEAGUE   A   PART   OF    THE 

PEACE  TREATY 

We  still  find  responsible  statesmen  who  think  that 
this  nation  has  contributed  all  that  it  is  called  upon  to 
do  and  can  now  with  honor  step  aside  and  commit  to 
the  European  nations  the  stupendous  task  of  recon- 
structing the  nations  of  the  European  continent  which 
have  been  shattered  by  the  war.  But  what  is  the  situa- 
tion? When  we  went  to  war  with  Germany  not  only 
our  national  institutions  but  also  modern  Anglo-Saxon 
civilization  were  threatened,  and  we  became  as  vitally 
involved  as  any  European  nation  in  the  defense  of  Bel- 
gian neutrality  and  the  destruction  of  military  autoc- 
racy as  a  principle  of  government.  For  these  objects 
of  the  war  we  became  irrevocably  committed  to  fight  to 
the  bitter  end,  and  it  was  for  that  that  we  assumed  a 
national  indebtedness  far  greater  than  our  people  had 
ever  before  dreamed  of  creating,  and  equipped  and 


126  PAPERS  AND  ADDRESSES 

transported  with  miraculous  speed  an  army  of  two 
million  men  to  the  field  of  battle,  where  more  than 
fifty  thousand  of  our  young  men  made  the  supreme 
sacrifice  and  four  times  as  many  were  grievously 
wounded. 

And  we  have  succeeded  in  our  lofty  and  unselfish 
aims.  The  public  opinion  of  the  world,  including  prob- 
ably that  of  the  people  of  the  Teutonic  nations  them- 
selves, condemns  forever  any  disregard  of  treaty  obli- 
gations among  civilized  nations,  and  military  autocracy 
as  a  principle  of  government  has  been  banished  forever 
from  the  earth.  Out  of  Germany,  Austria  and  Russia, 
new  nations  are  to  be  carved  and  set  up  upon  the  prin- 
ciple of  self-determination  of  their  people  on  the  basis 
of  race  and  nationality.  The  Polish  part  of  Germany, 
Austria  and  Russia  is  to  be  transformed  into  a  Czecho- 
slovak self-governing  state  of  ten  million  inhabitants. 
The  democracy  of  Jugo-Slovakia  is  to  be  created  in  the 
south  out  of  Austria  and  Hungary.  New  boundaries 
are  to  be  established  on  race  lines  in  the  Balkans. 
Upon  the  same  principle  Roumania  is  to  be  enlarged  by 
adding  Transylvania  and  Bessarabia.  Constantinople 
is  to  be  made  international,  while  the  Dardanelles  are 
to  be  an  open  avenue  for  all  nations.  Independent 
states  are  to  be  established  in  Palestine,  Syria, 
Armenia  and  Mesopotamia. 

Thus,  seven  new  independent  European  republics 
and  at  least  four  infant  but  autocratic  governments  are 
to  be  set  up  in  Asia  Minor. 

But  it  is  too  much  to  expect  that  the  new  nations  thus 
created  will  in  their  infancy  develop  a  national  self- 
restraint  which  will  save  them  from  border  quarrels 
among  themselves,  and  already  we  begin  to  hear  of 
threatened  hostilities.  Furthermore,  it  is  doubtful 
whether  a  German  system  will  emerge  from  the  exist- 


THE  LEAGUE  OF  NATIONS  127 

ing  confusion  which  can,  without  the  assistance  of  other 
nations,  preserve  order  in  central  Europe  or  defend 
itself  against  the  disturbing  effects  of  Anarchy  and 
Bolshevism  pressing  on  its  eastern  front,  although  it  is 
to  the  interest  of  the  world  that  Germany  should  have, 
as  soon  as  possible,  a  strong  and  permanent  system 
controlled  by  the  will  of  the  people;  for,  however  op- 
pressive, however  medieval,  however  disturbing  to 
the  peace  of  the  world  the  German  system  was,  at  least 
it  effectively  maintained  domestic  stability  and  order 
in  central  Europe,  and  now  that  that  has  been  destroyed 
beyond  the  hope  of  restoration  the  victors  are  re- 
sponsible for  finding  a  substitute,  or  they  fail  in  their 
duty  to  humanity.  While  it  is  hoped  that  the  interposi- 
tion of  Czecho-Slovakia,  a  greater  Eoumania  and  Jugo- 
Slovakia,  between  Germany  and  Russia,  will  save  Ger- 
many and  the  Western  European  countries  from  the 
destructive  influences  of  Russian  unrest,  this  cannot  be 
assured  without  the  joint  action  of  all  the  European 
allies,  and  without  the  effective  cooperation  of  the 
United  States. 

America's  responsibility 

In  this  situation  this  country  cannot  in  honor  escape 
a  fair  share  of  responsibility.  It  would  be  futile,  as  it 
would  be  dishonorable,  for  us  now  to  say  that  the  condi- 
tions which  were  exacted  from  Germany,  Austria, 
Turkey  and  Bulgaria  were  no  longer  the  concern  of  the 
United  States.  However  much  we  may  have  differed 
as  to  the  extent  to  which  it  would  have  been  advisable 
for  us  to  become  involved  in  European  affairs,  it  be- 
came apparent  early  in  the  war,  not  only  that  the  fate 
of  the  war-weary  European  nations  depended  upon  us, 
but  that  the  struggle  was  so  desperate  and  the  issue  so 
doubtful,  that  no  longer  could  it  be  said  in  the  words  of 


128  PAPERS  AND  ADDRESSES 

Washington  that  Enrope  "has  a  set  of  primary  inter- 
ests which  to  us  have  none  or  a  very  remote  relation." 
On  the  contrary,  there  was  a  common  danger,  where 
the  situation  had  little  relation  to  the  ordinary  friend- 
ships and  enmities  and  rivalries  of  the  European  na- 
tions of  the  eighteenth  or  nineteenth  century. 

It  was  this  situation  that  led  President  Wilson  on 
January  8,  1918,  to  formulate  as  a  basis  for  peace  the 
Fourteen  Points,  and  while  many  Americans  felt,  as  I 
did,  that  he  to  an  unnecessary  extent  took  the  initiative 
in  injecting  this  country  into  the  internal  affairs  of  the 
European  continent,  it  was  upon  the  basis  of  those 
points  (with  two  exceptions  insisted  upon  by  England) 
that  the  armistice  was  agreed  to  by  all  of  the  belligerent 
powers. 

The  Fourteen  Points,  among  other  things,  included  a 
readjustment  of  the  frontiers  of  Italy,  along  "clearly 
recognized  lines  of  nationality,"  the  safeguarding  of 
the  peoples  of  Austria,  for  the  "autonomous  develop- 
ment" of  the  nations  which  they  saw  fit  to  establish 
(subsequently  modified  so  as  to  provide  for  the  recog- 
nition of  a  Czecho-Slovak  nation  and  the  nationalistic 
aspiration  of  the  Jugo-Slavs  and  the  restoration  of  the 
occupied  territories  of  Roumania,  Serbia  and  Monte- 
negro) ;  free  and  secure  access  to  the  sea  to  be  accorded 
to  Serbia,  the  relations  of  the  Balkan  states  to  be  de- 
termined by  historically  established  lines  of  allegiance 
and  nationality,  and  international  guarantees  of  polit- 
ical and  economic  independence  and  territorial  integ- 
rity of  the  Balkan  states  to  be  entered  into;  all  the 
nationalities  except  those  in  the  Turkish  portions  of 
the  Ottoman  Empire — that  is  to  say,  Syria,  Palestine, 
Armenia  and  Mesopotamia — to  be  "assured  an  un- 
doubted security  of  life  and  an  absolutely  unmolested 
opportunity   of   autonomous   development,"   and   the 


THE  LEAGUE  OF  NATIONS  129 

Dardanelles  to  be  permanently  opened  as  a  free  pas- 
sage to  the  ships  and  commerce  of  all  nations  under  in- 
ternational guarantees;  and  an  independent  Polish 
state  composed  of  territories  inhabited  by  Polish  pop- 
ulations with  access  to  the  sea  "whose  political  and 
economic  independence  and  territorial  integrity  should 
be  guaranteed  by  international  covenant." 

On  July  4, 1918,  the  President  added  the  further  idea 
that  the  combined  power  of  free  nations  was  to  be  used 
to  "  check  every  invasion  of  right  and  serve  to  make 
peace  and  justice  the  more  secure  by  affording  a 
definite  tribunal  of  opinion  to  which  all  must  submit 
and  by  which  every  international  readjustment  that 
cannot  be  amicably  agreed  upon  by  the  peoples  directly 
concerned,  shall  be  sanctioned." 

And  finally,  by  Article  XIV  of  the  original  points  it 
was  specifically  stated  that  "a  general  association  of 
nations  must  be  formed  under  specific  covenants  for 
the  purpose  of  affording  mutual  guarantees  of  political 
independence  and  territorial  integrity  to  great  and 
small  states  alike." 

With  history  thus  made  by  the  inevitable  march  of 
events  and  with  the  responsibility  of  this  country  thus 
solemnly  formulated  by  the  President  of  the  United 
States  as  a  condition  of  peace,  and  accepted  by  the  vic- 
torious and  the  defeated  nations  alike,  how  can  this 
country  now  withdraw  from  sustaining  to  the  utmost 
any  responsibility  which  can  reasonably  be  expected  of 
it,  to  give  substantial  guarantees  for  the  permanent 
maintenance  of  the  national  structures  which  are  to  be 
brought  into  being  by  the  treaty  of  peace  t 

Not  only  has  the  matter  become  the  subject  of  a 
solemn  covenant  on  our  part,  but  the  people  of  Europe 
in  their  desperation  rightly  look  to  this  country  to  save 
them  from  Anarchy  and  Bolshevism.     Indeed,  it  is  not 


130  PAPERS  AND  ADDRESSES 

an  exaggeration  to  say  that  they  believe  that  if  we  were 
to  withdraw  our  moral  backing  and  our  potential  ma- 
terial support,  they  would  be  deprived  of  the  chief  bul- 
wark protecting  them  from  a  threatened  destruction 
of  modern  Christian  civilization  and  that  a  league  of 
nations,  however  mandatory  its  terms,  would  be  but  a 
"rope  of  sand." 

It  is  for  these  reasons  that  it  is  necessary  not  only  to 
provide  for  a  league  of  nations  as  a  part  of  the  treaty 
of  peace,  but  also  to  retain  the  principles  of  Article  X. 

WILL,  THE  LEAGUE  SUCCEED? 

The  chance  that  a  league  of  nations  will  accomplish 
something  substantial  is  enhanced  by  the  epochal  hap- 
penings of  this  war.  In  no  previous  war  have  so  many 
nations  of  the  world  been  engaged  on  one  side  or  the 
other.  Never  have  there  been  so  many  men  called 
from  their  peaceful  occupations.  Never  before  has 
there  been  such  a  loss  of  life  or  such  an  enormous  de- 
struction of  property;  never  so  much  individual  and 
collective  distress  and  hardship.  No  previous  war  has 
left  so  many  nations  on  the  verge  of  bankruptcy,  which 
only  many  years  of  rehabilitation  can  remove. 

The  people  of  the  world  are  not  likely  soon  to  forget 
these  things,  or  the  possibilities  of  the  development  in 
future  wars  of  scientific  methods  for  causing  destruc- 
tion of  property  and  life ;  and  all  of  these  things  have 
combined  to  produce  an  aversion  to  war  far  deeper 
than  has  ever  before  existed.     But  that  is  not  all. 

For  the  first  time  in  the  history  of  the  world,  a  situa- 
tion has  been  created  in  which  peace  is  no  longer  to  be 
dependent  upon  the  will  of  individual  sovereigns  or 
autocratic  governments.  Practically  every  nation  of 
the  world  will  from  this  time  forth  have  a  government 


THE  LEAGUE  OF  NATIONS  131 

representing,  in  one  form  or  another,  the  people,  and  it 
is  they  who  desire  to  abolish  war  as  a  means  of  settling 
disputes.  This  fact  gives  confidence  that  covenants, 
and  even  expressions  of  intention,  for  the  avoidance  of 
war,  will  not  hereafter  be  regarded  as  merely  the  insin- 
cere assurances  of  autocrats  trained  in  the  school  of 
diplomatic  intrigue,  or  as  the  high-sounding  but 
academic  expressions  of  momentary  aspirations  of 
good  but  impotent  peace  commissioners. 

The  Constitution  of  the  League 

the  preamble 

The  object  of  the  signatory  powers  in  adopting  the 
Constitution  of  the  League  of  Nations  is  stated  in  the 
preamble  to  be : 

"To  promote  international  cooperation  and  to  secure 
international  peace  and  security." 

This  main  purpose  is  to  be  obtained  by  (1)  "the  ac- 
ceptance of  obligations  not  to  resort  to  war,"  (2)  "the 
prescription  of  open,  just  and  honorable  relations  be- 
tween nations,"  (3)  "the  firm  establishment  of  the  un- 
derstandings of  international  law  as  the  actual  rule  of 
conduct  among  governments,"  and  (4)  "the  mainten- 
ance of  justice  and  scrupulous  respect  for  all  treaty 
obligations  in  the  dealings  of  organized  people  with 
one  another." 

THE  COVENANTS 

Opponents  of  the  Constitution  in  its  present  form 
have  based  their  objections  chiefly  on  Articles  VIII,  X, 
XII,  XIII,  XV  and  XVI,  and  there  is  considerable  mis- 
understanding as  to  the  substance  and  effect  of  those 


132  PAPERS  AND  ADDRESSES 

articles.  If,  however,  the  rule  of  construction  usually 
applied  to  treaties  is  adopted,  the  meaning  and  effect 
of  the  covenants  becomes  sufficiently  clear.  In  spite  of 
considerable  prolixity  of  style  and  some  involved  sen- 
tences, due  probably  to  inserting  amendments  in  the 
original  draft  without  sufficient  attention  to  literary 
modeling,  any  ambiguity  that  remains  after  such  con- 
struction is  not  so  serious  as  to  be  a  menace  to  the  vital 
interests  of  the  United  States. 

As  the  purpose  of  the  League  is  expressed  to  be  the 
security  and  peace  of  the  world,  a  meaning  tending  to 
produce  a  different  result  is  not  to  be  adopted  unless 
the  words  used  make  it  necessary. 

As  Elihu  Root,  Henry  Cabot  Lodge  and  George  Tur- 
ner said  in  the  Alaskan  boundary  arbitration  in  1903 : 
"We  are  not  at  liberty  to  ascribe  a  meaning  to  the 
terms  of  a  treaty  which  would  frustrate  the  known  and 
proved  purpose  of  the  instrument  unless  the  words 
used  in  the  instrument  are  such  as  to  permit  of  no  other 
construction.  Whoever  asserts  a  construction  which 
would  produce  such  a  result  must  show  not  merely  that 
it  is  a  possible  construction,  but  that  it  is  a  necessary 
construction  and  that  any  other  is  impossible."  (Sen. 
Doc.  No.  162,  58th  Congress,  Second  Session,  I,  53.) 


ARTICLES   Vlil    AND    IX 

Article  VIII  provides  for  ' '  the  reduction  of  national 
armaments  to  the  lowest  point  consistent  with  national 
safety."  It  requires  the  Executive  Council  to  " deter- 
mine for  the  consideration  and  action  of  the  several 
governments  what  military  equipment  and  armament 
is  fair  and  reasonable  in  proportion  to  the  scale  of 
forces  laid  down  in  the  program  of  disarmament ;  and 


THE  LEAGUE  OF  NATIONS  133 

these  limits,  when  adopted,  shall  not  be  exceeded  with- 
out the  permission  of  the  Executive  Council.' ' 

Thus,  the  determination  of  the  Executive  Council  as 
to  the  proportion  of  each  state's  reduction  is  to  be  only 
1  'for  the  consideration  and  action"  of  that  state,  and 
any  limitation  imposed  does  not  become  binding  until 
' '  adopted ' '  by  such  state.  The  whole  arrangement  de- 
pends upon  the  good  faith  of  the  high  contracting  par- 
ties, and  there  is  not  even  a  moral  obligation  on  the 
part  of  any  state  to  ' '  adopt ' '  a  limitation  which  is  not 
"  consistent  with  national  safety  and  the  enforcement 
by  common  action  of  international  obligations,"  or 
which  does  not  give  fair  consideration  to  "the  geo- 
graphical situation  and  circumstances  of  each  state." 
These  are  matters  which  would  necessarily  have  to  be 
determined  by  each  state  largely  for  itself,  but  in  a 
spirit  which  is  "fair  and  reasonable"  in  view  of  the 
general  intent  of  the  treaty. 

Several  desirable  amendments  of  Articles  VIII  and 
IX  have  been  proposed.  One  is  that  the  Executive 
Council  of  the  League  shall,  every  five  years,  reexamine 
the  limitation  of  armament  proposed,  and  make  recom- 
mendations as  in  the  first  instance.  This  amendment 
is  advisable,  although  it  is  doubtful  whether  it  is  neces- 
sary. 

Mr.  Root  has  suggested  that  the  commission  consti- 
tuted under  Article  IX  "shall  have  full  power  of  in- 
spection and  verification  ...  as  to  armament,  equip- 
ment, munitions  and  industries  referred  to  in  Article 
VIII."  If  this  power  is  not  to  be  implied  from  the 
provisions  of  Article  VIII,  the  amendment  ought  to  be 
made,  although  it  may  be  objected  to  because  it  would 
imply  that  the  member  nations  may  not  act  in  good 
faith. 


134  PAPERS  AND  ADDRESSES 

AKTICLE   X 

This  article  is  as  follows: 

"The  high  contracting  parties  shall  undertake  to  respect 
and  preserve  as  against  external  aggression  the  territorial  in- 
tegrity and  existing  political  independence  of  all  states  mem- 
bers of  the  League.  In  case  of  any  such  aggression  or  in 
case  of  any  threat  or  danger  of  such  aggression  the  Executive 
Council  shall  advise  upon  the  means  by  which  the  obligation 
shall  be  fulfilled." 

Senator  Knox  says  that  this  article  contemplates  the 
sending  of  our  troops  to  some  distant  part  of  the  earth 
to  settle  a  controversy  in  which  we  might  have  a  very 
remote  interest.  It  is  also  said  that  it  destroys  the 
force  of  the  Monroe  Doctrine.  But  in  reality  the 
article  is  no  more  nor  less  than  a  declaration  of  the 
application  of  a  kind  of  Monroe  Doctrine  to  all  of  the 
member  nations ;  and  in  seeking  its  effect  it  is  useful  to 
observe  how  the  Monroe  Doctrine  works  out  in  practice. 

THE  MONROE  DOCTRINE 

This  doctrine  embodies  what  is  essentially  a  de- 
fensive principle;  that  is  to  say,  it  seeks  to  prevent 
such  interference  with  nations  in  this  hemisphere  as 
would  tend  ultimately  to  result  in  the  establishment  of 
governmental  systems  based  on  principles  in  conflict 
with  those  upon  which  the  American  Commonwealth  is 
founded.  It  does  not  exclude  offensive  measures  by 
European  or  Asiatic  nations  to  correct  the  interna- 
tional manners  or  to  enforce  the  substantial  obligations 
of  nations  in  this  hemisphere,  provided  such  measures 
do  not  extend  or  threaten  to  extend  so  far  as  to  inter- 
fere with  established  territorial  boundaries  or  existing 
political  institutions. 


THE  LEAGUE  OF  NATIONS  135 

This  aspect  of  the  doctrine  was  shown  when  this 
country  refused  to  interfere  to  protect  Chile  from 
Spain  and  announced  that  the  United  States  would  not 
prevent  a  foreign  nation  from  punishing  an  American 
nation  even  to  the  extent  of  war,  provided  the  aggres- 
sion was  not  for  the  purpose  of  changing  territorial 
boundaries  or  overthrowing  the  sovereignty  of  the 
American  nation.  President  Roosevelt,  in  the  Vene- 
zuelan matter,  also  limited  the  doctrine  so  as  to  permit 
foreign  nations  to  collect  by  force  debts  owing  by 
American  nations.  The  Monroe  Doctrine  seeks  only  to 
prevent  the  nations  of  the  world  from  increasing  their 
present  possessions  in  the  Western  Hemisphere 
"through  war  or  purchase  or  intrigue"  or  from  ac- 
quiring additional  "political  power  or  strategical  op- 
portunity" at  the  expense  of  existing  nations  of  the 
Western  Hemisphere. 

Article  X  prescribes  for  all  the  nations  of  the  world 
a  defensive  policy  similar  to  the  Monroe  Doctrine  as 
thus  understood.  It  provides  that  the  high  contracting 
parties  shall  undertake  "to  respect  and  preserve  as 
against  external  aggression  the  territorial  integrity 
and  existing  political  independence"  of  member  states. 
Unless  the  "external  aggression"  shall  have  been  pre- 
ceded by  submission  to  arbitration  under  Article  XIII, 
or  by  mediation  under  Article  XV,  it  would  amount  to 
a  resort  to  war  in  violation  of  Article  XII,  and  that 
would  immediately  make  applicable  the  penalty  of  boy- 
cott under  Article  XVI. 

But  even  if  the  guarantee  does  impose  upon  all  the 
members  of  the  League  the  necessity  of  adopting  at 
once  effective  military  measures  to  prevent  "external 
aggression,"  our  experience  with  the  Monroe  Doctrine 
shows  that  such  measures  would  not  necessarily  be 
taken  until  the  aggression  had  gone  far  enough  to 


136  PAPERS  AND  ADDRESSES 

demonstrate  that  it  was  directed  at ' '  the  territorial  in- 
tegrity and  existing  political  independence"  of  the 
state  affected.  It  will  be  remembered  that  in  the  case 
of  Mexico  this  country  contented  itself  with  diplomatic 
protests  until  there  had  been  a  military  invasion  of 
Mexico  and  Maximilian  had  been  proclaimed  emperor. 

EXTENT  OF  THE  OBLIGATION  IMPOSED  BY  ARTICLE  X 

In  case  an  obligation  arose  to  aid  a  signatory  nation 
against  " external  aggression"  the  extent  of  such  aid 
would  have  to  be  advised  upon,  but  not  determined,  by 
the  unanimous  vote  of  the  Executive  Council.  Any 
recommendation  imposing  upon  the  United  States  an 
unreasonable  burden  could  be  vetoed  by  its  single  vote ; 
and  as  a  practical  matter  the  burden  of  military  meas- 
ures would  undoubtedly  fall  upon  the  nations  which,  by 
reason  of  geographical  proximity  and  vital  national  in- 
terests, were  most  directly  affected  by  the  threatened 
aggression. 

It  is  true  that  in  the  present  form  of  Article  X,  and 
if  unanimity  is  not  required  in  the  Executive  Council, 
an  "external  aggression"  upon  one  of  the  nations  in 
the  Western  Hemisphere  might  lead  to  the  intervention 
of  some  European  or  Asiatic  nation.  But  that  would 
be  highly  improbable.  Neither  European  nor  Asiatic 
nations  would  care  to  concern  themselves  with  the  af- 
fairs of  the  Western  Hemisphere,  and  would  be  only 
too  willing  to  permit  the  United  States  to  continue  to 
carry  out  its  traditional  policy. 

PROPOSED  MODIFICATION  OF  ARTICLE  X 

To  avoid  possible  controversy,  and  to  make  a  reser- 
vation which  would  probably  be  a  sufficient  protection 
of  the  Monroe  Doctrine,  it  would  be  wise  to  amend 
Article  X  by  making  a  provision  similar  to  that  con- 


THE  LEAGUE  OF  NATIONS  137 

tained  in  Article  XIX  with  reference  to  the  tutelage  of 
weak  nations,  to  the  effect  that  the  primary  responsi- 
bility for  measures  to  prevent  "external  aggression" 
in  violation  of  Article  X  should  rest  upon  nations 
which,  on  account  of  the  ' '  geographical  situation  of  the 
territory,  its  economic  conditions  and  other  similar  cir- 
cumstances," as  well  as  their  own  vital  national  inter- 
ests, are  most  directly  concerned.  Such  a  provision 
would  leave  no  doubt  that  in  the  case  of  an  "external 
aggression"  upon  a  country  of  the  Western  Hemi- 
sphere the  United  States  would  be  the  nation  which 
would  be  first  looked  to  to  take  suitable  steps,  military 
or  otherwise,  to  make  the  guarantee  of  Article  X  effect- 
ive, and  in  so  doing  they  would  be  acting  in  conformity 
with  the  principle  of  the  Monroe  Doctrine.  It  would 
also  then  be  plain  that,  in  accordance  with  the  Lansing- 
Ishii  notes  of  November,  1917,  in  the  event  of  an  ex- 
ternal aggression  affecting  China,  Japan  would  be 
first  expected  to  adopt  appropriate  measures  for  main- 
taining the  "independence  or  territorial  integrity  of 
China. "  And  likewise  it  would  result  that  in  the  event 
of  an  aggression  upon  an  European  nation  defensive 
measures  would  be  committed  primarily  to  the  Euro- 
pean nations  directly  affected. 

It  would,  of  course,  be  preferable,  if  the  diplomatic 
situation  makes  it  possible,  that  there  should  be  an  ex- 
press reservation  inserted  in  the  covenant  that  the 
traditional  American  policy  embodied  in  the  Monroe 
Doctrine  was  not  intended  to  be  affected.  It  may  be 
difficult,  however,  to  obtain  such  a  broad  reservation, 
since  it  would  evoke  from  Japan,  Great  Britain,  France 
and  Italy  a  demand  for  some  specific  reservation  con- 
cerning their  relation  to  countries  within  the  areas  of 
their  influence,  and  that  would  lead  to  complications. 
That  the  Peace  Council  does  not  intend  to  impair  the 


138  PAPERS  AND  ADDRESSES 

strength  of  the  Monroe  Doctrine  is  indicated  in  the 
words  of  Lord  Robert  Cecil,  who  had  more  to  do  with 
drawing  the  Constitution  of  the  League  than  any  other 
member  of  the  Peace  Council.  He  says  that  "if  the 
Monroe  Doctrine  means,  as  I  believe  it  does,  that  there 
ought  to  be  no  interference  with  affairs  on  the  Amer- 
ican continent  by  European  powers  without  the  consent 
of  the  United  States,  then  I  say  that  the  doctrine  is 
strengthened  by  the  League  of  Nations. ' ' 

While  Article  X,  modified  in  the  manner  suggested, 
would  still  impose  upon  all  of  the  high  contracting  pow- 
ers an  ultimate  responsibility  for  the  enforcement  of 
the  guarantee  against  "external  aggression,"  the  pos- 
sibility that  the  United  States  would  be  called  upon  to 
furnish  a  military  force  in  any  part  of  the  world  except 
the  Western  Hemisphere  would  be  very  remote,  and 
such  contingency  is  not  to  be  anticipated  if  the  cove- 
nants of  the  League  are  to  be  carried  out  in  the  spirit 
indicated  in  the  preamble. 

OTHER  OBJECTIONS  TO  ARTICLE  X 

It  has  been  urged  that  Article  X  is  too  rigid  be- 
cause it  preserves  against  external  aggression  the  ter- 
ritorial integrity  and  political  independence  of  every 
member  state.  But  the  guarantee  is  only  against  "ex- 
ternal aggression,"  and  that,  of  course,  implies  that  it 
is  by  hostile  attack  of  the  nation  upon  whom  the  ag- 
gression is  committed.  It  would  not  prevent  any  two 
contiguous  nations  from  changing  their  boundaries 
through  purchase  or  cession,  nor  does  it  prevent 
a  change  in  the  political  independence  of  a  nation, 
provided  such  change  is  made  by  the  consent  of  its 
people. 

It  is  also  objected  that  Article  X  applies  to  contin- 
gencies that  cannot  be  foreseen.     But  if  such  a  test 


THE  LEAGUE  OF  NATIONS  139 

were  applied  it  would  exclude  any  provision  similar  to 
Article  X.  The  article  is  intended  to  apply  to  all 
cases  where  one  nation  makes  an  attack  upon  the  terri- 
tory or  the  independence  of  another  nation,  and  if  the 
purpose  of  the  League  is  borne  in  mind  it  is  difficult 
to  imagine  a  case  where  it  would  not  be  consonant  with 
that  purpose  to  prevent  external  aggression.  If  the 
article  is  amended  by  providing  that  any  military  force 
which  is  needed  in  the  first  instance  shall  be  furnished 
by  the  nation  whose  territory  is  nearest  to  the  point 
of  attack,  or  whose  national  interest  is  most  directly 
involved,  thus  saving  any  possible  invasion  of  the 
Monroe  Doctrine,  no  reasonable  objection  can  be  made 
to  it. 

Article  X  is  one  of  the  most  beneficent  provisions  of 
the  covenants,  and  it  is  absolutely  necessary  if  we  are 
to  discharge  the  responsibility  which  has  been  cast 
upon  us  as  a  nation  and  the  new  peace  treaty  is  to  be 
anything  more  than  a  mere  paper  compact  without  sub- 
stantial sanctions. 

ARTICLE    XII 

This  article  is  of  the  utmost  importance  because  it 
binds  all  the  high  contracting  parties  that  "they  will 
in  no  case  resort  to  war"  until  three  months  after  an 
award  by  arbitration  under  Article  XIII,  or  a  recom- 
mendation upon  a  mediation  under  Article  XV,  and 
that  they  will  not  even  then  resort  to  war  as  against 
a  member  nation  which  complies  with  the  award  upon 
arbitration  under  Article  XIII,  or  with  the  recom- 
mendation of  the  Executive  Council  upon  a  mediation 
under  Article  XV.  The  penalty  of  a  boycott  for  a 
violation  of  this  covenant,  prescribed  by  Article  XVI, 
will  probably  result  in  strict  observance  of  the  cove- 
nant itself.     The  effect  of  the  delay  will  in  most  cases 


140  PAPERS  AND  ADDRESSES 

be  the  abandonment  of  all  idea  of  war.     This  has  not 
been  sufficiently  emphasized. 

The  time  during  which  war  could  be  suspended  un- 
der Article  XII  is,  (1)  a  reasonable  time  during  which 
the  arbitrators  under  Article  XIII  are  deliberating  and 
three  months  thereafter,  or  (2)  in  the  case  of  mediation 
under  Article  XV,  not  exceeding  nine  months  after 
the  submission  of  the  dispute. 

ARTICLE    XIII 

This  article  provides  for  the  arbitration  of  a  mat- 
ter in  dispute.  The  member  nations,  however,  are  only 
bound  to  submit  to  arbitration  such  matters  as  "they 
recognize  to  be  suitable  for  submission  to  arbitration." 
If  in  good  faith  they  regard  a  matter  as  being  of  a 
character  not  suitable  for  arbitration,  as,  for  instance, 
where  vital  national  interests  are  involved,  or  the  sub- 
ject matter  of  the  dispute  is  not  intrinsically  justici- 
able, they  are  not  bound  to  arbitrate.  Practically  Ar- 
ticle XIII  in  many  cases  will  give  to  the  member  nations 
the  option  of  submitting  to  arbitration  or  of  accepting 
mediation  under  Article  XV. 

ARTICLE   xv 

By  this  article  the  high  contracting  parties  covenant 
that  a  dispute  not  submitted  to  arbitration  under  Arti- 
cle XIII  shall  be  referred  for  mediation  to  the  Execu- 
tive Council  (or,  at  the  option  of  a  party,  to  the  Body  of 
Delegates),  which  (1)  may  settle  the  dispute,  in  which 
case  a  statement  of  the  terms  of  settlement  shall  be 
published,  or  (2)  shall,  if  a  settlement  is  not  made, 
publish  its  recommendation  as  to  what  it  thinks  "just 
and  proper  for  the  settlement  of  the  dispute."  If  the 
report  containing  the  recommendation  is  "unanimously 
agreed  to  by  the  members  of  the  Council  other  than  the 


THE  LEAGUE  OF  NATIONS  141 

parties  to  the  dispute ' '  the  parties  to  the  dispute  agree, 
as  pointed  out  above,  "that  they  will  not  go  to  war 
with  any  party  which  complies  with  the  recommenda- 
tions," whatever  such  recommendations  may  be.  If 
a  unanimous  report  cannot  be  made,  the  majority  of 
the  Council  is  required,  and  the  minority  is  permitted, 
to  issue  statements,  indicating  their  findings  of  fact 
and  their  reasons  for  their  conclusions. 

While  under  Article  XIII  there  is  an  express  cove- 
nant that  the  high  contracting  parties  "will  carry  out 
in  full  good  faith  any  award  that  may  be  rendered," 
and  under  Article  XV  that  "they  will  not  go  to  war 
with  any  party  which  complies"  with  the  unanimous 
recommendation  of  the  Council,  there  is  no  definite 
penalty  prescribed  for  a  failure  to  fulfill  these  obliga- 
tions, since  under  Article  XIII,  for  a  failure  to  carry 
out  an  award,  the  Executive  Council  is  only  to  "propose 
what  steps  can  best  be  taken  to  give  effect"  to  an 
award,  and  under  Article  XV,  for  a  violation  of  the 
stipulation  not  to  go  to  war,  the  Executive  Council  has 
no  duty  except  to  "propose  measures  necessary  to  give 
effect  to  the  recommendations." 

The  duty  conferred  upon  the  Executive  Council  by 
these  provisions  is  clearly  advisory,  and  final  action 
can  only  be  taken  upon  the  unanimous  vote  of  the  Body 
of  Delegates,  and  even  that  body  has  no  authority  to 
compel  the  signatory  powers  to  enforce  obedience  by 
war.  At  most,  the  default  of  a  high  contracting  party 
would  amount  to  a  renunciation  of  the  treaty,  which 
would  make  the  recalcitrant  an  outcast  nation,  and,  if 
it  did  not  voluntarily  retire,  would  undoubtedly  make 
it  subject  to  a  decree  of  expulsion  from  the  League. 
But  the  Executive  Council  might  recommend  to  the 
Body  of  Delegates  a  modified  form  of  punishment  lead- 
ing to  some  adjustment,  and  it  is  probable  that  under 


142  PAPERS  AND  ADDRESSES 

the  provisions  referred  to,  it  was  contemplated  that 
the  Executive  Council  would  propose  remedies  for 
recalcitrancy,  varying  according  to  the  circumstances 
of  each  case.  While  a  compulsory  remedy  for  a  breach 
of  the  covenant  to  carry  out  the  award  or  the  recom- 
mendation is  not  provided  in  Articles  XIII  and  XV,  it 
is  quite  clear  that  the  moral  effect  of  their  provisions 
will  be  such  as  to  make  them  entirely  effective  in  the 
vast  majority  of  cases. 

Furthermore,  it  is  to  be  remembered  that  the  main 
purpose  of  the  Constitution  of  the  League  is  not  com- 
pulsory arbitration,  but  the  avoidance  of  war,  and  the 
penal  provisions,  particularly  those  of  Article  XVI,  are 
directed  to  that  end.  If  the  Executive  Council  should 
deem  the  boycott  provided  for  in  the  first  paragraph  of 
Article  XVI  as  an  appropriate  remedy  to  enforce  a 
compliance  with  an  award  under  Article  XIII,  or  a 
recommendation  under  Article  XV,  it  could,  of  course, 
recommend  that  that  coercive  measure  be  adopted,  thus 
assimilating  the  remedy  to  that  specifically  provided 
for  a  violation  of  Article  XII. 

ARTICLE   xvi 

This  article  is  of  the  utmost  importance,  because  it 
provides  for  affirmative  and  drastic  measures  to  secure 
compliance  with  the  covenant  to  suspend  war.  As  has 
been  seen,  the  member  states  agree  by  Article  XII  that 
they  will  not  resort  to  war  until  three  months  after 
the  disputes  have  been  arbitrated  under  Article  XIII 
or  until  nine  months  after  submission  to  mediation 
under  Article  XV.  It  is  declared  by  Article  XVI  that 
a  high  contracting  party  committing  a  breach  of  this 
covenant  "shall  thereby  ipso  facto  be  deemed  to  have 
committed  an  act  of  war  against  all  the  other  members 
of  the  League."     The  immediate  remedy,  however,  is 


THE  LEAGUE  OF  NATIONS  143 

a  boycott  against  the  outlaw  nation,  by  which  they  will 
immediately  subject  it  "to  the  severance  of  all  trade  or 
financial  relations,  the  prohibition  of  all  intercourse 
between  their  nationals  and  the  nationals  of  the  cove- 
nant-breaking state,  and  the  prevention  of  all  financial, 
commercial  or  personal  intercourse  between  the  na- 
tionals of  the  covenant-breaking  state  and  the  nationals 
of  any  other  state,  whether  a  member  of  the  League 
or  not. ' '  This  boycott  is  to  go  into  effect  immediately 
and  it  will  no  doubt  produce  such  an  isolation  of  the 
offending  nation,  and  such  damage  to  its  material  in- 
terests, that  a  resort  to  war  for  a  more  complete  pun- 
ishment will  be  a  very  remote  possibility. 

Whether  war  shall  be  resorted  to  is  entirely  optional 
with  the  nation  members  of  the  League.  Upon  this 
point  there  has  been  much  misunderstanding  through 
inattention  to  the  express  provisions  of  Article  XVI. 
The  second  sentence  of  that  article  provides  as  follows : 

"It  shall  be  the  duty  of  the  Executive  Council  in  such 
case  to  recommend  what  effective  military  or  naval  force 
the  members  of  the  League  shall  severally  contribute  to 
the  armed  forces  to  be  used  to  protect  the  covenants  of  the 
League. ' ' 

The  use  of  the  word  "recommend"  in  this  provision 
is  significant.  It  clearly  does  not  import  compulsion, 
and  certainly  not  in  the  absence  of  unanimous  action 
on  the  part  of  the  Executive  Council  and  of  the  Body 
of  Delegates.  If  such  unanimity  is  not  to  be  implied 
from  the  present  provisions  of  the  Constitution,  prob- 
ably the  Peace  Conference  will  adopt  an  amendment 
to  that  effect,  which  I  have  reason  to  believe  is  being 
urged  upon  them.  Military  or  naval  measures  should 
in  the  first  instance,  as  in  the  case  of  an  aggression  pro- 
vided for  in  Article  X,  be  undertaken  by  the  member 


144  PAPERS  AND  ADDRESSES 

nation  best  fitted  therefor  through  territorial  prox- 
imity or  national  interest,  and  a  provision  to  that  ef- 
fect should  also,  and  probably  will,  be  added  to  the 
second  sentence  of  Article  XVI. 

While  it  seems  quite  clear  that  in  its  present  form 
Article  XVI  will  not  impose  upon  a  member  nation 
the  obligation,  in  the  words  of  Senator  Knox,  "to  go 
to  war  when  and  in  the  manner  the  Executive  Council 
determines"  or  to  "fly  to  arms  to  protect  the  cove- 
nants, ' '  it  would  probably  be  wise  by  the  changes  sug- 
gested to  allay  the  fears  which  have  been  aroused  by 
statements  made  by  opponents  of  the  League. 

Article  XVI  also  provides  that  mutual  financial  and 
economic  support  shall  be  furnished  by  nation  mem- 
bers in  making  the  penalty  of  the  first  paragraph  of  the 
article  effective,  and  that  in  case  of  military  measures 
nation  members  will  permit  the  forces  of  any  of  the 
high  contracting  parties  to  pass  through  their  territory. 

ARTICLE    XVII 

This  article  is  designed  to  bring  to  bear  upon  the 
states  which  do  not  become  members  of  the  League  the 
coercive  effect  of  the  covenants  so  as  to  prevent  dis- 
putes among  them  from  leading  to  war.  It  provides 
for  cases  of  dispute  between  a  member  and  a  non- 
member  and  between  states  which  are  non-members. 
For  the  sole  purpose  of  the  settlement  of  the  dispute, 
non-members  are  invited  to  become  members  of  the 
League,  and  upon  the  acceptance  of  such  invitation  an 
investigation  and  a  recommendation  are  made  by  the 
Executive  Council.  In  case  a  non-member  state  re- 
fuses to  accept  the  invitation  and  thus  to  subject  itself 
to  the  provisions  of  Article  XII  postponing  the  com- 
mencement of  war,  the  member  nations  agree  to  apply 
to  the  refusing  state  the  boycott  provided  for  in  the 


THE  LEAGUE  OF  NATIONS  145 

first  paragraph  of  Article  XVI.  Thus  the  drastic 
measures  of  that  article  will  be  resorted  to  for  the  pur- 
pose of  preventing  war,  not  alone  among  members  of 
the  League,  but  also  among  all  the  nations  of  the  earth. 
Article  XVII  also  provides  that  where  two  non-mem- 
bers refuse  to  accept  the  invitation  to  assume  the 
obligations  of  membership  for  the  purposes  of  the 
dispute,  the  Executive  Council  may  take  such  action 
and.  make  such  recommendations  as  will  prevent  hostil- 
ities and  result  in  the  settlement  of  the  dispute. 

PROPOSED   CHANGES   OF   THE    CONSTITUTION 

The  adoption  of  the  changes  in  the  Constitution  pro- 
posed above  would  not  imply  a  disapproval  of  the 
fundamental  principles  of  the  League.  The  changes 
will  only  tend  to  remove  possible  misunderstandings 
and  to  allay  fears.  They  may  be  summed  up  as 
follows : 

(1)  An  express  provision  requiring  unanimity  on 
the  part  of  the  Executive  Council,  except  where  other- 
wise expressly  provided.  Since  the  Constitution  is 
nothing  but  a  treaty  (this  fact  does  not  seem  to  be 
generally  understood),  unanimity  to  authorize  any 
kind  of  action  would  probably  be  presumed,  but  there 
can  be  no  objection  to  removing  all  doubt ; 

(2)  Article  X  should  be  amended  so  as  to  safeguard 
the  Monroe  Doctrine  by  providing  that  where  military 
force  is  necessary  it  should  be  furnished  by  the  nation 
best  fitted  for  the  purpose  through  geographical  prox- 
imity or  national  interest.  From  the  standpoint  of 
this  country's  interest  it  would  also  be  desirable  to 
have  the  Monroe  Doctrine  expressly  recognized,  and 
there  is  good  reason  to  believe  that  it  will  be ; 

(3)  Provision  (probably  unnecessary)  should  be 
made  for  the  withdrawal  of  any  member  of  the  League 


146  PAPERS  AND  ADDRESSES 

after  some  fixed  period  and  upon  some  reasonable 
notice ; 

(4)  The  limits  of  armament  adopted  by  the  nations 
should  be  reexamined  after  some  period,  say  five  years ; 

(5)  Perhaps  there  should  be  a  reassuring  expression 
of  opinion  that  matters  of  domestic  jurisdiction  and 
polity  according  to  international  law  are  not  intended 
to  be  affected  by  the  covenants. 

* 

It  would  not  be  objectionable,  and  from  the  stand- 
point of  this  country  would  be  desirable,  if  Senator 
Lodge 's  suggestions  concerning  the  tariff  and  immigra- 
tion could  be  adopted  in  some  form,  although  in  my 
view  of  the  character  of  the  treaty-making  power  the 
reservation  is  not  necessary.  It  would  serve  the  pur- 
pose, however,  of  allaying  apprehensions  on  the  part 
of  patriotic  Americans  who  have  "  reverence  for  the 
laws  ourselves  have  made,"  and  I  cannot  see  how  it 
would  be  objectionable  to  the  other  nations.  Some 
general  phrase  could  be  inserted  substantially  to  the 
effect  that  it  was  not  the  intention  to  vest  in  the  Execu- 
tive Council,  or  the  Body  of  Delegates,  power  to  deal 
with  any  question  which,  under  rules  of  international 
law,  is  within  the  domestic  jurisdiction  and  polity  of 
the  member  states. 

STYLE  OF  THE  CONSTITUTION 

Except  for  actual  omissions,  the  chief  defects  of  the 
Constitution  are  prolixity  and  involved  style.  But 
treaties  are  not  statutes,  and  they  have  always  con- 
tained expressions  of  intention,  good  will  and  senti- 
ment, and  have  adopted  a  phraseology  quite  different 
from  that  deemed  necessary  in  statutes.  As  there  is 
no  Supreme  Court  for  their  enforcement,  they  are 
based  on  good  faith,  and  this  has  led  to  some  laxity 


THE  LEAGUE  OF  NATIONS  147 

in  forms  of  expression.  The  statements  concerning 
the  ambiguities  of  the  Constitution  of  the  League  are 
somewhat  exaggerated,  however,  and  I  do  not  believe 
that  a  Secretary  of  State  would  have  difficulty  in  in- 
terpreting it  in  a  manner  which  would  avoid  serious 
prejudice  to  this  country.  But  we  are  assured  that 
the  Constitution  is  to  be  thoroughly  revised,  and  all 
ambiguities  eliminated. 

POWEES    OF    THE    EXECUTIVE    COUNCIL 

The  basis  for  most  of  the  attacks  upon  the  Constitu- 
tion of  the  League  has  been  found  in  statements  made 
by  Senator  Knox  in  his  speech  in  the  Senate  on  March 
1.  He  concludes  that  "war  is  mandatory"  under  Ar- 
ticle X,  Article  XII  and  Article  XVII.  As  to  all  these 
cases  he  says : 

"And  in  all  these  three  cases,  whether  or  not  we  partici- 
pate, the  amount  of  our  participation  in  the  belligerent  opera- 
tions is  determined  not  by  ourselves  but  the  Executive  Coun- 
cil, in  which  we  have  seemingly  at  most  but  one  voice  out  of 
nine.  No  matter  what  we  think  of  the  merits  of  the  contro- 
versy, no  matter  how  we  view  the  wisdom  of  a  war  over 
the  cause,  we  are  bound  by  this  covenant  to  go  to  war  when 
and  in  the  manner  the  Executive  Council  determines." 

It  sufficiently  appears  from  what  has  been  said  above 
that  there  is  no  reasonable  ground  for  these  statements. 
While  the  Executive  Council  has  a  variety  of  duties, 
in  the  main  they  are  advisory,  and  its  decisions  are 
obviously  provided  for  on  account  of  their  expected 
moral  effect.  Its  powers  and  duties  may  be  summed  up 
as  follows : 

(1)  It  determines  upon  the  program  of  disarma- 
ment, but  only  "for  the  consideration  and  action  of 


148  PAPERS  AND  ADDRESSES 

the  several  governments, ' '  and  the  limitations  become 
effective  only  when  adopted  by  the  nations,  though  they 
are  not  to  be  removed  without  the  consent  of  the  Execu- 
tive Council; 

(2)  It  advises  upon  the  means  by  which  its  obliga- 
tion under  Article  X  shall  be  fulfilled ; 

(3)  It  formulates  plans  for  the  establishment  of  a 
Permanent  Court  of  International  Justice; 

(4)  It  acts  as  a  mediator  under  Article  XV;  and 
also  proposes  measures  to  give  effect  to  its  recom- 
mendations ; 

(5)  It  recommends  the  military  forces  that  members 
of  the  League  shall  contribute  under  Article  XVI ; 

(6)  It  acts  as  a  mediator  in  disputes  between  non- 
members  of  the  League,  and  is  authorized  to  take  ac- 
tion and  make  recommendations  for  the  prevention  of 
hostilities ; 

(7)  If  the  high  contracting  parties  shall  fail  to  act, 
it  is  to  define  explicitly  the  degree  of  authority,  control 
or  administration  to  be  exercised  by  a  mandatory 
state. 

These  are  the  principal  functions  vested  in  the 
Executive  Council,  and  unless  we  give  to  the  words 
"recommend,"  "advise"  and  "propose"  a  meaning 
equivalent  to  "order"  and  "direct,"  there  is  no  found- 
ation for  Senator  Knox 's  statement  that  the  Constitu- 
tion creates  a  "supercovenant,"  or  that  the  Executive 
Council  is,  in  his  words,  "legislature,  court  and,  in 
large  part,  executive  all  in  one. ' '  The  only  real  power 
conferred  upon  the  council  is  that  of  a  veto  upon  an 
increase  of  armament,  and  the  provision  dealing  with 


THE  LEAGUE  OF  NATIONS  149 

that  subject  will  probably  be  amended  so  as  to  provide 
that  after  some  fixed  period  a  nation  may  apply  to 
the  Body  of  Delegates  from  time  to  time  to  modify  the 
limitation. 

CONSTITUTIONALITY 

Mr.  Knox  contends  that  the  covenants  of  the 
League  are  in  violation  of  the  Federal  Constitution  (1) 
in  that  they  place  the  power  of  declaring  war  in  the 
hands  of  the  Executive  Council;  (2)  because  the  limit  of 
armament,  when  adopted  by  the  several  governments, 
cannot  be  exceeded  without  the  permission  of  the  Ex- 
ecutive Council;  (3)  because  no  treaty  made  by  this 
country  will  become  binding  until  it  has  become  regis- 
tered with  the  Secretary  General  of  the  League;  (4)  in 
that  situations  might  arise  under  Article  XVI  relating 
to  financial  and  economic  measures  for  the  support  of 
other  members  of  the  League  calling  for  unconstitu- 
tional action  by  this  government;  and  (5)  in  that  under 
Article  XX  freedom  of  transit  and  equitable  treatment 
of  commerce  stipulated  for,  might  require  the  making 
of  laws  which  Congress  ought  not  to  make,  and  yet 
if  it  did  not  make  them  it  might  find  itself  in  a  position 
where  the  omission  to  make  them  would  bring  on  war. 

If  there  is  anything  in  Mr.  Knox's  constitutional  ob- 
jections, similar  objections  may  be  made  to  most  of  the 
treaties  to  which  this  country  has  been  a  party  since 
the  foundation  of  the  government.  He  fails  to  give 
due  consideration  to  the  peculiar  character  under  our 
Constitution  of  the  treaty-making  power. 

The  provisions  of  the  Federal  Constitution  relating 
to  treaties  were  the  subject  of  fervid  controversy  in  the 
discussions  in  the  Constitutional  Convention  of  1787; 
and  since  that  time  the  attempt  to  make  the  House  of 
Representatives  a  potential  agency  in  the  negotiation 


150  PAPERS  AND  ADDRESSES 

of  treaties  with  foreign  countries  has  been  repeated 
many  times,  but  without  success.  Few  treaties  have 
been  made  which  have  been  self-executing,  that  is,  en- 
forcible  without  supplementary  action  by  the  House  of 
Representatives  in  the  appropriation  of  money  or  in 
some  other  strictly  legislative  act.  The  fact  that  such 
legislation  is  necessary,  however,  does  not  render  a 
treaty  unconstitutional. 

George  Mason  and  Grouverneur  Morris  vigorously 
objected  in  the  Constitutional  Convention  of  1787  to 
making  the  treaty  power  independent  of  the  legislative 
power,  urging  that  no  treaty  should  be  "binding  on  the 
United  States  which  is  not  ratified  by  law" ;  and  James 
Wilson  urged  that  "as  treaties  are  to  have  the  opera- 
tion of  laws,  they  ought  to  have  the  sanction  of  laws 
also."  But  all  such  objections  were  overruled,  and 
Article  VI  of  the  Constitution  was  made  to  provide 
that  treaties  made  by  the  President  by  and  with  the 
advice  and  consent  of  the  Senate  should  be  "the 
supreme  law  of  the  land." 

Hamilton  argued  that  the  making  of  treaties  was 
neither  an  executive  nor  a  legislative  function,  adding, 
"It  relates  neither  to  the  execution  of  the  subsisting 
laws  nor  to  the  enaction  of  new  ones,  but  still  less  to 
an  exercise  of  the  common  strength.  Its  objects  are 
contracts  with  foreign  nations  which  have  the  force  of 
law  but  derive  it  from  the  obligations  of  good  faith." 
(Federalist  No.  75  [74].)  In  his  letters  to  Washington 
(CrandalVs  Treaties,  p.  170)  Hamilton  also  said  that 
it  was  "one  thing  that  a  treaty  pledging  the  faith  of 
the  nation  should  by  force  of  moral  duty  oblige  the 
legislative  will  to  carry  it  into  effect"  and  "quite  an- 
other that  it  should  be  itself  a  law."  He  called  at- 
tention to  the  fact  that  treaties  common  among  na- 


THE  LEAGUE  OF  NATIONS  151 

tions  included  indemnification,  pecuniary  or  otherwise, 
stipulations  for  the  union  of  military  forces,  and  the 
furnishing  of  pecuniary  or  other  aid,  and  the  regula- 
tion of  external  commerce,  and  unless  the  treaty  power 
could  embrace  such  objects,  "it  would  even  be  inade- 
quate for  mere  treaties  of  peace,  and  always  so  for 
treaties  of  alliance  and  of  commerce. ' '  The  Constitu- 
tion provides  no  method  of  compelling  the  House  of 
Representatives  to  act,  but  a  legal  discretion  to  refuse 
the  execution  of  a  treaty  is  virtually  a  power  to  repeal 
it.  Hence  Hamilton  concludes  "that  the  House  of 
Representatives  have  no  moral  power  to  refuse  the  ex- 
ecution of  a  treaty  which  is  not  contrary  to  the  Con- 
stitution, because  it  pledges  the  public  faith ;  and  have 
no  legal  power  to  refuse  its  execution  because  it  is  a 
law — unless  at  least  it  ceases  to  be  a  law  by  regular 
act  of  revocation  of  the  competent  authority/' 

In  1792  Mr.  Jefferson  negotiated  a  treaty  with  Al- 
giers which  required  the  payment  of  money  and  was 
asked  by  President  Washington  whether  he  should  not 
wait  until  the  treaty  had  been  ratified  by  both  houses 
of  Congress.  Jefferson  expressed  the  opinion  that  the 
ratification  by  the  House  of  Representatives  was  not 
necessary,  but  said  that  it  "might  be  incautious  to  com- 
mit himself  by  a  ratification  with  a  foreign  nation 
where  he  might  be  left  in  the  lurch  in  the  execution." 
(Vol.  I,  Writings  of  Thomas  Jefferson,  p.  216.)  Wash- 
ington declined  to  wait,  saying  that  if  Congress 
would  not  do  "what  the  Constitution  called  on  them 
to  do,  the  government  would  be  at  an  end,  and  must 
then  assume  another  form."  Subsequently,  in  1796, 
the  House  of  Representatives  requested  President 
Washington  to  lay  before  it  a  copy  of  the  instructions 
to  the  Minister  of  the  United  States  who  negotiated 


152  PAPERS  AND  ADDRESSES 

the  Jay  treaty  with  Great  Britain,  together  with  the 
correspondence  and  other  documents  relative  thereto. 
He  declined  to  comply  with  the  request,  saying: 

"It  is  thus  that  the  treaty-making  power  has  been  under- 
stood by  foreign  nations,  and  in  all  the  treaties  made  with 
them  ive  have  declared  and  they  have  believed  that  when 
ratified  by  the  President,  with  the  advice  and  consent  of  the 
Senate,  they  became  obligatory.  In  this  construction  of  the 
Constitution,  every  House  of  Representatives  has  heretofore 
acquiesced  and  until  the  present  time  not  a  doubt  or  sus- 
picion has  appeared  to  my  knowledge  that  this  construction 
was  not  the  true  one;  nay,  they  have  more  than  acquiesced, 
for  till  now,  without  controverting  the  obligation  of  such 
treaties,  they  have  made  all  the  requisite  provisions  for  carry- 
ing them  into  effect." 

He  added  that  "it  is  essential  to  the  due  administra- 
tion of  the  government  that  the  boundaries  fixed  by  the 
Constitution  between  the  different  departments  should 
be  preserved." 

Chief  Justice  Ellsworth,  who  had  been  a  member  of 
the  Constitutional  Convention,  expressed  a  similar 
view,  after  his  appointment  as  Chief  Justice  of  the 
United  States,  saying  that  the  obligation  to  carry  out 
the  provisions  of  a  treaty  "is  as  indispensable  as  it  is  to 
appropriate  for  the  President's  salary  or  that  of  the 
Judges,  or  in  any  other  cases  where  fidelity  to  the 
Constitution  does  not  leave  an  option  to  refuse." 

This  view  of  the  treaty -making  power  under  the  Con- 
stitution has  always  been  adhered  to  and  has  received 
the  sanction  of  the  Supreme  Court.  In  Foster  v.  Neil- 
son,  Chief  Justice  Marshall  said:  "Our  Constitution 
declares  a  treaty  to  be  the  law  of  the  land.  It  is 
consequently  to  be  regarded  in  courts  of  justice  as 
equivalent  to  an  act  of  the  Legislature  whenever  it 
operates  of  itself  without  the  aid  of  any  legislative 


THE  LEAGUE  OF  NATIONS  153 

provision."  In  Geofroy  v.  Riggs,  Mr.  Justice  Field 
said:  ''The  treaty  power  as  expressed  in  the  Constitu- 
tion is  in  terms  unlimited  except  by  those  restraints 
which  are  found  in  that  instrument  against  the  action 
of  the  government  or  of  its  departments,  and  those 
arising  from  the  nature  of  the  government  itself  and 
that  of  the  states.  It  would  not  be  contended  that  it 
extends  so  far  as  to  authorize  what  the  Constitution 
forbids  or  a  change  in  the  character  of  the  government 
or  in  that  of  one  of  the  states  or  a  cession  of  any 
portion  of  the  territory  of  the  latter,  without  its  con- 
sent. .  .  .  But  with  these  exceptions  it  is  not  per- 
ceived that  there  is  any  limit  to  the  questions  which 
can  be  adjusted  touching  any  matter  which  is  properly 
the  subject  of  negotiation  with  a  foreign  country." 

It  is  true  that  if  a  treaty  and  an  act  of  Congress  are 
"inconsistent  the  one  last  in  date  will  control  the  other, 
provided  always  the  stipulation  of  the  treaty  on  the 
subject  is  self  -executing. "  Field,  J.,  in  Whitney  v. 
Robertson,  124  U.  S.,  190,  194;  United  States  v.  Lee 
Yen  Tai,  185  U.  S.,  213,  220.  But  any  question  as  to 
carrying  treaties  into  effect  has  rarely  arisen,  since  the 
House  of  Representatives  has  almost  uniformly  recog- 
nized the  broad  sweep  of  the  treaty-making  power  and 
has  promptly  acted  to  enable  the  nation  honorably  to 
perform  its  treaty  obligations.  The  matter  has  never 
been  presented  with  reference  to  an  obligation  assumed 
in  a  treaty  to  levy  war,  but  it  may  be  safely  asserted 
that  the  principle  applicable  to  that  situation  wrould 
not  be  different  from  that  applying  to  any  other  legis- 
lative power  requiring  for  its  exercise  the  action  of 
the  House  of  Representatives. 

It  would  be  impossible  in  most  cases  to  ascertain, 
before  making  a  treaty,  whether  Congress  would  do 
what  might  be  necessary  to  make  it  effective,  as,  for 


154  PAPERS  AND  ADDRESSES 

instance,  would  make  good  a  guarantee  such  as  that 
given  in  the  case  of  the  Nicaragua  Canal,  or  would  re- 
duce the  naval  forces  on  the  Great  Lakes,  as  required 
by  our  treaty  with  Great  Britain.  In  a  multitude  of 
treaties  the  United  States  has  made  covenants  contem- 
plating performance  during  a  long  period  of  time.  In 
such  cases  it  would  be  impossible  to  tell  how  some  fu- 
ture Congress  might  act ;  indeed,  one  Congress  might  be 
willing  to  do  what  a  succeeding  Congress  would  refuse 
to  do.  Whether  the  matter  relates  to  the  appropria- 
tion of  money  or  to  the  declaration  of  war,  the  question 
must  be  decided  by  the  Congress  in  office  at  the  time 
when  a  situation  arises  requiring  action.  Under  our 
Constitution  that  is  inevitable,  and  practically  amounts 
to  this,  that  when  the  President  and  the  Senate  agree 
upon  a  treaty  it  is  impossible  that  they  shall  have  the 
assurance  in  advance  that  a  House  of  Representa- 
tives in  office  will  do  what  is  necessary  to  carry  the 
treaty  into  effect  in  accordance  with  its  terms;  and  it 
has  never  been  the  custom  to  consult  the  House. 

NATIONAL   SOVEREIGNTY 

Precisely  what  is  meant  by  the  assertion  that  the 
League  involves  an  impairment  of  national  sovereignty 
it  is  difficult  to  understand.  It  has  no  possible  foun- 
dation, except  in  the  mistaken  assumption  that  the 
Executive  Council  practically  is  given  the  power  to 
make  war  and  to  enforce  a  boycott  under  Article  XVT, 
and  that  the  United  States  is  in  such  minority  in  the 
Council  that  the  delegation  of  power  amounts  to  an  ab- 
dication of  sovereignty  in  what  may  prove  to  be  vital 
national  matters.  But  it  is  to  be  borne  in  mind  that 
a  treaty  is  a  bargain  with  another  country,  in  which  the 
idea  of  sovereignty  becomes  more  theoretical  than  real, 
since  the  interest  of  the  people  of  a  nation  requires 


THE  LEAGUE  OF  NATIONS  155 

their  government  in  every  treaty  to  limit  their  freedom 
of  action.  In  consideration  of  benefits  obtained  by 
each  nation,  it  makes  concessions  which  are  a  restric- 
tion upon  its  sovereign  rights. 

Sir  Frederick  Pollock,  a  very  high  authority,  holds 
that  there  can  be  no  undue  encroachment  upon  sover- 
eignty by  a  treaty  unless  its  restraints  are  "unreason- 
able or  excessive,  having  regard  to  the  importance  of 
the  end  to  be  attained."  He  points  out  that  the  later 
arbitration  treaties  (such  as  the  Bryan  treaties  for  the 
promotion  of  peace)  do  not  exclude  even  questions  of 
"honor,  independence  or  vital  interests";  and  he  adds 
that  if  the  nations  making  such  treaties  "have  thereby 
ceased  to  be  independent  it  would  seem  that  independ- 
ence is  a  kind  of  legal  fiction  hardly  worth  preserving, 
like  the  absolute  and  indivisible  sovereignty  of  certain 
publicists,  which  unfortunately  for  their  doctrine,  it 
is  impossible  to  find  in  the  government  of  the  United 
States,  or  in  any  Federal  Constitution.  If  great  pow- 
ers may  without  undue  derogation  enter  into  covenants 
one  with  another  to  refer  their  disputes  to  arbitra- 
tion or  the  award  of  a  court,  why  is  it  a  derogation 
to  enter  into  one  comprehensive  agreement  to  the  same 
effect,  guaranteed  by  the  joint  strength  of  them  all! 
.  .  .  There  is  ample  precedent  for  such  undertakings 
in  defined  spheres  of  international  affairs  and  traffic, 
the  Postal  Union,  for  example.  Every  member  of  that 
union  has  renounced  its  power,  as  regards  all  other 
members,  of  fixing  rates  of  foreign  postage  at  its  own 
will  and  pleasure." 

And  as  to  the  delegation  of  power  to  declare  war 
the  distinguished  author  adds  that  "the  real  question 
is  whether  the  security  for  the  common  peace  to  be 
gained  by  the  establishment  of  a  common  power  is 
worth  its  price." 


156  PAPERS  AND  ADDRESSES 

There  is  no  limit  in  the  Constitution  of  the  United 
States  upon  the  extent  to  which  this  country  can  by 
treaty  limit  its  sovereignty,  except  that  it  may  not 
change  the  form  of  government  of  the  United  States 
or  part  with  territory  belonging  to  one  of  the  states 
without  the  consent  of  that  state. 

It  is  clear  that  the  treaty-making  power  extends  to 
agreements  to  make  or  refrain  from  making  war,  to 
levy  a  commercial  boycott,  to  submit  disputes  to  com- 
pulsory arbitration,  to  guarantee  protection  to  the  ter- 
ritory of  another  nation,  and  to  adopt  offensive  or 
defensive  measures  looking  to  a  state  of  war.  All 
such  agreements,  of  course,  materially  detract  from 
the  theoretical  sovereignty  of  a  nation,  but  they  are, 
nevertheless,  clearly  within  the  treaty-making  power. 

As  early  as  1817,  by  the  Rush-Bagot  treaty,  this 
country  and  Great  Britain  agreed  to  limit  their  naval 
armament  upon  the  lakes  forming  the  boundary  be- 
tween this  country  and  Canada,  and  that  agreement 
has  been  continued  and  respected  ever  since. 

In  1842,  by  the  Webster-Ashburton  treaty,  Great 
Britain  and  this  country  agreed  that  they  would 
maintain  a  naval  force  on  the  coast  of  Africa  for  the 
suppression  of  the  slave  trade,  the  forces  of  the  two 
nations  to  act  in  concert  and  cooperation. 

By  the  Clayton-Bulwer  treaty  of  1850,  between  Great 
Britain  and  the  United  States,  which  related  to  the 
subject  of  a  ship  canal  between  the  Atlantic  and  the 
Pacific  oceans,  the  two  countries  guaranteed  the  neu- 
trality of  the  canal  and  agreed  that  if  the  canal  should 
be  undertaken  by  certain  persons,  their  property 
should  be  protected  from  unjust  confiscation,  seizure 
or  violence.  Every  other  friendly  nation  was  invited 
to  join  in  the  stipulations.  The  treaty  also  declared 
that  neither  of  the  two  high  contracting  parties  would 


THE  LEAGUE  OF  NATIONS  157 

ever  "obtain  or  maintain  for  itself  any  exclusive  con- 
trol over  the  said  ship  canal;  agreeing  that  neither 
will  ever  erect  or  maintain  any  fortifications  command- 
ing the  same  or  in  the  vicinity  thereof,  or  occupy,  or 
fortify,  or  colonize,  or  assume,  or  exercise  any 
dominion  over  Nicaragua,  Costa  Rica,  the  Mosquito 
Coast  or  any  part  of  Central  America ;  nor  will  either 
make  use  of  any  protection  which  either  affords  or  may 
afford,  or  any  alliance  which  either  has  or  may  have  to 
or  with  any  state  or  people,  for  the  purpose  of  erecting 
or  maintaining  any  such  fortifications ;  or  of  occupying, 
fortifying  or  colonizing  Nicaragua,  Costa  Rica,  the 
Mosquito  Coast  or  any  part  of  Central  America,  or 
assuming  or  exercising  dominion  over  the  same;  nor 
will  the  United  States  or  Great  Britain  take  advantage 
of  any  intimacy  or  use  any  alliance,  connection  or  in- 
fluence that  either  may  possess  with  any  state  or  gov- 
ernment through  whose  territory  the  said  canal  may 
pass,  for  the  purpose  of  acquiring  or  holding,  directly 
or  indirectly,  for  the  citizens  or  subjects  of  the  one  any 
rights  or  advantages  in  regard  to  commerce  or  navi- 
gation through  the  said  canal  which  shall  not  be  offered 
on  the  same  terms  to  the  citizens  or  subjects  of  the 
other." 

The  Clayton-Bulwer  treaty  also  provided  that  ves- 
sels of  the  two  high  contracting  parties  should  be 
exempt,  in  case  of  war  between  them,  from  blockade, 
detention  or  capture.  The  restrictions  upon  the  sov- 
ereignty of  the  United  States  by  this  treaty  are  so 
obvious  that  they  need  no  comment  except  to  say  that 
they  have  a  peculiar  significance,  in  view  of  the  pres- 
ent discussion,  because  the  restrictions  relate  to  a 
country  in  the  Western  Hemisphere,  and  may  be  fairly 
construed  as  tending  to  impair  the  full  application  of 
the  Monroe  Doctrine. 


158  PAPERS  AND  ADDRESSES 

In  1846,  by  Article  35  of  a  treaty  with  Colombia,  the 
United  States  guaranteed  "  positively  and  efficaciously 
.  .  .  the  perfect  neutrality"  of  the  Isthmus  of  Panama. 
The  significance  of  this  provision  is  that  it  necessarily 
involved,  in  case  of  a  violation  of  neutrality,  the  use 
of  armed  forces  of  this  country  for  the  performance 
of  its  obligations. 

By  a  treaty  with  Honduras  in  1864,  the  United 
States  guaranteed  the  neutrality  of  the  Honduras 
Railroad,  and  engaged  with  that  country  that  it  should 
not  be  seized  or  confiscated. 

By  the  treaty  with  Nicaragua,  made  in  1867,  the 
United  States  extended  its  protection  to  all  routes  of 
communication  between  the  Atlantic  and  Pacific,  and 
guaranteed  the  " neutrality  and  innocent  use  thereof.' * 
It  was  stipulated  that  military  force  might  be  em- 
ployed, but  on  the  condition  only  that  it  should  be 
authorized  by  Congress. 

In  1901,  the  Panama  Canal  treaty  was  made  with 
Great  Britain,  by  which  it  was  provided  that  the  canal 
could  never  be  blockaded,  and  that  no  act  of  hostility 
could  be  committed  within  it.  The  principle  of  neu- 
tralization of  the  canal  was  recognized. 

In  1903,  by  treaty  with  Panama,  this  country  guar- 
anteed and  agreed  to  maintain  the  independence  of 
the  republic  of  Panama. 

In  1889,  by  the  treaty  with  Germany  and  Great 
Britain,  the  signatory  powers  recognized  the  neutrality 
of  the  Samoan  Islands  and  provided  that  the  three 
powers  should  have  equal  rights  within  the  islands. 
The  three  signatory  nations  undertook  a  guardianship 
of  the  islands  similar  to  that  which  is  contemplated  in 
the  proposed  Constitution  of  the  League  with  refer- 
ence to  backward  countries. 

Within  the  last  half  dozen  years,  the  President  has 


THE  LEAGUE  OF  NATIONS  159 

negotiated  treaties  which  were  ratified  by  the  Senate, 
(i.e.  the  Bryan  treaties  "For  the  Advancement  of 
Peace")  with  Guatemala,  Norway,  Portugal,  Great 
Britain,  Costa  Rica,  Spain,  Sweden,  Denmark,  France, 
Uruguay,  Peru,  Paraguay,  Italy,  Russia,  China,  Chile, 
Ecuador,  Honduras,  Brazil  and  Bolivia,  in  each  of 
which,  in  practically  identical  language,  we  have 
agreed  that  disputes  arising  between  this  country  and 
the  other  countries  named  should  be  submitted  for  in- 
vestigation and  report  to  an  International  Commission, 
and  that  during  the  progress  of  such  investigation  we 
would  not  resort  to  war  for  the  satisfaction  of  our 
rights. 

The  objection  of  the  opponents  of  the  League  based 
on  the  fact  that  the  power  to  declare  war  is  vested  by 
the  Constitution  in  Congress  would  apply  to  all  of 
these  treaties ;  and,  furthermore,  the  suspension  of  the 
exercise  of  that  power  is  to  continue  during  the  period 
when  the  dispute  is  being  considered  by  an  interna- 
tional commission,  to  be  selected  in  such  manner  that 
in  most  cases  a  majority  of  the  commission  will  come 
from  nations  other  than  those  who  are  parties  to  the 
dispute.  In  other  words,  the  power  of  Congress  to  de- 
clare war  is  suspended,  while  a  commission,  composed 
of  members,  a  majority  of  whom  are  not  American  citi- 
zens, is  proceeding  to  determine  whether  we  are  right 
in  the  dispute.  And  yet  I  do  not  think  it  has  been 
seriouslv  contended  that  the  Bryan  treaties  are  un- 
constitutional  or  unduly  detract  from  the  sovereignty 
of  the  nation. 

Thus  it  appears  that  under  the  treaty-making  power, 
and  without  the  concurrence  of  Congress,  we  have 
made  treaties  for  the  reduction  of  armament,  the 
maintenance  of  armed  forces  in  foreign  territory,  the 
fixing  of  boundaries,  the  maintenance   of  neutrality 


160  PAPERS  AND  ADDRESSES 

of  territory  belonging  to  other  nations,  the  guarantee 
of  the  independence  of  other  nations,  the  compulsory 
arbitration  of  disputed  matters,  and  the  postponement 
of  war  during  that  process,  the  participation  by  this 
country  with  other  countries  in  the  affairs  and  govern- 
ment of  backward  nations,  a  restriction  upon  the  right 
to  erect  fortifications  for  the  protection  of  property  in 
which  this  country  is  interested  and  with  reference  to 
which  it  assumes  a  responsibility,  and  an  appropria- 
tion of  money  in  order  to  make  all  such  treaties  effec- 
tive. The  Constitution  of  the  League  of  Nations,  ex- 
cepting that  it  deals  in  a  single  treaty  with  a  greater 
number  of  nations  and  a  greater  variety  of  subjects, 
does  not  require  an  invasion  of  the  sovereignty  of  the 
United  States  to  a  greater  extent  than  that  involved 
in  the  treaties  above  enumerated;  or,  if  it  does,  the 
greater  concessions  are  justified  by  the  lofty  and 
beneficent  purpose  to  insure  a  lasting  and  universal 
peace. 

THE    NEGOTIATION    OF    THE    TREATY 

I  agree  with  Senator  Lodge  that  the  President  ought 
to  have  discussed  with  the  Senate  such  an  important 
matter  as  the  League  of  Nations.  Although  it  is  in 
accordance  with  historical  precedent  that  negotiations 
with  foreign  nations  should  originate  through  our  State 
Department,  and,  of  course,  ultimately  be  approved  by 
the  President,  the  working  arrangement  has  usually 
been  that  the  Foreign  Affairs  Committee  of  the  Senate 
has  been  taken  into  formal  or  informal  conference  at 
an  early  stage  of  the  proceedings,  and,  practically 
speaking,  in  that  way  the  "advice"  of  the  Senate  has 
been  obtained.  That  ought  to  have  been  done  in  the 
case  of  the  League  of  Nations  before  the  President 
went  to  Europe  the  first  time.     He  ought  also  to  have 


THE  LEAGUE  OF  NATIONS  161 

discussed  with  the  Foreign  Affairs  Committee  of  the 
Senate  the  League  of  Nations  upon  his  recent  return  to 
this  country,  and  to  have  invited  from  them  sugges- 
tions of  changes  in  the  form  of  the  Constitution. 

His  failure  to  do  any  of  these  things  has  excited 
antagonism  and  has  made  the  controversy  now  raging 
much  more  bitter  than  it  ought  to  be. 

But,  however  just  the  criticisms  of  the  President 
may  be  in  this  respect,  the  situation  must  be  dealt  with 
in  a  practical  way.  Senator  Lodge  suggests  that  a 
special  session  of  the  Senate  be  called,  and  that  then 
the  Senate  will  suggest  amendments  and  send  them  to 
Paris.  Such  course  is  utterly  impracticable  now.  It 
is  too  late.  Individual  senators  should  make  their 
specific  suggestions  as  Senator  Lodge  has  now  done. 
The  Senate  cannot  avoid  the  ultimate  responsibility 
for  rejecting  the  treaty  by  urging  that  it  should  have 
been  permitted  as  a  body  to  submit  amendments  at 
some  earlier  time. 


SOVEREIGNTY,  CONSTITUTIONALITY  AND 
THE  MONROE  DOCTRINE 


VII 

SOVEREIGNTY,  CONSTITUTIONALITY  AND 
THE  MONROE  DOCTRINE1 

SOVEREIGNTY 

Hvery  civilized  nation  must,  in  the  interests  of  its 
citizens,  make  treaties,  and,  like  ordinary  trades  be- 
tween individuals,  these  must  be  negotiated  on  the 
principle  of  "give  and  take."  Whatever  it  agrees  to 
do  or  to  refrain  from  doing  imposes  a  restriction  which 
detracts  from  its  complete  sovereignty.  But  it  does 
not  thereby  unduly  surrender  its  independence,  unless 
the  restriction  makes  its  ordinary  governmental  func- 
tions subject  to  control  by  another  country,  as  was  the 
case,  for  instance,  with  Cuba,  when  she  accepted  the 
terms  of  the  Piatt  Amendment,  and  thereby  subjected 
her  national  financial  policy  and  her  foreign  relations 
to  the  supervisory  control  of  the  United  States.  A 
nation's  independence  is  not  unduly  impaired  by  a 
treaty  by  which  it  receives  advantages  which  compen- 
sate it  for  what  it  concedes. 

It  is  too  late  to  argue  in  this  country  that  interna- 
tional agreements  to  make  or  to  refrain  from  making 
war,  to  guarantee  protection  to  the  territory  of  other 
nations  and  to  limit  armament,  unduly  impair  a 
nation's  sovereignty;  for  numerous  instances  of  such 
agreements  in  existing  treaties  will  be  found  in  our  dip- 
lomatic history.  Nor  can  it  be  said  that  such  agree- 
ments were  not  contemplated  when  our  Constitution 

i  Letters  of  Mr.  Henry  W.  Taft,  reprinted  from  "The  Covenanter, 
An  American  Exposition  of  the  Covenant  of  the  League  of  Nations," 
being  a  series  of  letters  written  by  William  H.  Taft,  George  W.  Wicker- 
sham,  A.  Lawrence  Lowell  and  Henry  W.  Taft,  after  the  Covenant  had 
been  revised.      (Doubleday,  Page  &  Co.,  1919.) 

165 


166  PAPERS  AND  ADDRESSES 

was  adopted,  for  the  Supreme  Court  has  held  that 
under  the  treaty-making  power,  the  President  and  the 
Senate  may  make  any  agreement  they  regard  as  appro- 
priate, provided  it  does  not  result  in  "a  change  in  the 
character  of  the  government  or  in  that  of  any  of  the 
states  or  a  cession  of  any  portion  of  the  territory  of 
the  latter,  without  its  consent." 

Article  X  of  the  covenant  is  criticized  as  involving 
an  impairment  of  sovereignty.  By  that  article  there 
is  created  a  defensive  alliance  of  the  nations  of  the 
League  to  prevent  external  aggression  threatening  the 
territorial  integrity  or  the  political  independence  of 
any  member  nation.  The  alliance  is  designed  prima- 
rily to  give  protection  to  the  seven  new  republics  in 
Europe  and  the  four  autonomous  nations  in  the  Near 
East,  created  as  a  result  of  the  war ;  and  the  obligation 
to  join  in  such  an  alliance  was  thrown  upon  us  because, 
by  the  Fourteen  Points  on  which  the  armistice  was 
expressly  based,  we  made  ourselves  responsible  not 
only  for  the  erection  of  the  new  states  but  also  for  their 
protection  against  attacks  from  without,  threatening 
their  status  as  it  was  to  be  established  by  the  treaty  of 
peace.  For  this  we  are  to  receive  the  further  advan- 
tage of  the  continuous  cooperation  of  the  League  in 
preserving  the  peace  of  the  world. 

Furthermore,  the  obligation  imposed  by  Article  X 
will  probably  be  less  burdensome  than  opponents  of 
the  League  have  assumed,  for  if  it  were  sought  to  have 
the  Council  advise  that  the  United  States  should  inter- 
vene in  what  we  regarded  as  an  unsuitable  case,  we 
could  veto  the  suggestion  by  our  single  vote.  But  it 
is  altogether  improbable  that  that  would  be  necessary ; 
for  in  any  concrete  case  it  would  naturally  happen  that 
the  burden  of  performing  the  guarantee  would,  in  the 
first  instance,  fall  on  the  nation  nearest  at  hand  or 


SOVEREIGNTY  167 

politically  most  concerned.  The  chance  that  we  should 
often,  if  ever,  be  called  upon  to  send  troops  or  warships 
to  Europe  or  Asia  to  repel  local  aggressions  would  be 
remote,  since  in  practice  they  would  have  to  be  dealt 
with  summarily  by  the  nations  more  directly  affected, 
precisely  as,  under  the  reservation  of  the  Monroe  Doc- 
trine in  Article  XXI,  we  would  be  expected  to  deal  with 
aggressions  upon  comitries  of  the  Western  Hemis- 
phere. 

In  considering  whether  we  are  unduly  hampered  by 
Article  X  "the  real  question/'  in  the  words  of  Sir 
Frederick  Pollock,  an  eminent  authority  on  the  subject, 
"is  whether  the  security  for  the  common  peace  to  be 
gained  by  the  establishment  of  a  common  power  is 
worth  its  price."  When  we  became  implicated  in  the 
European  situation,  we  committed  ourselves  to  the 
proposition  that  the  price  paid  by  our  becoming  a 
party  to  the  guarantee  of  Article  X  was  not  out  of 
proportion  to  the  security  we  expected  to  enjoy  in  the 
future.  It  was  in  the  interest  of  the  people  of  this 
country  that  the  United  States  should  become  a  de- 
cisive factor  in  the  world's  affairs.  We  cannot,  with 
national  honor,  now  escape  a  responsibility  corre- 
sponding to  our  contribution  to  the  winning  of  the  war. 
That  is  imposed  upon  us  by  the  dictates  of  interna- 
tional morality,  and  no  nation  can  be  said  unduly  to 
surrender  its  sovereignty  by  discharging  such  an  ob- 
ligation. 

The  chief  purpose  of  the  League  is  to  preserve  inter- 
national peace.  It  is  sought  to  accomplish  this  through 
the  reduction  of  armament  (Article  VIII),  the  suspen- 
sion of  war  during  the  process  of  the  settlement  of 
disputes  by  arbitration  or  through  mediation  (Articles 
XII,  XIII  and  XV),  and  an  economic  boycott  for  a  vio- 
lation  of  the  covenant    (Article  XVI).     In   view   of 


168  PAPERS  AND  ADDRESSES 

America's  past  efforts  to  avoid  war  by  procuring  the 
settlement  of  disputes  by  arbitration,  even  though 
they  involve  vital  interests  or  national  honor,  it  seems 
unnecessary  to  argue  that  such  a  comprehensive 
scheme  for  preserving  the  peace  of  the  world  as  that 
worked  out  in  the  covenant  does  not  involve  an  undue 
surrender  of  sovereignty.  Furthermore,  all  of  the 
obligations  assumed  for  the  beneficent  purpose  of  the 
League  have  their  counterpart  in  covenants  contained 
in  earlier  treaties: 

In  1817,  by  the  Rush-Bagot  treaty,  this  country  and 
Great  Britain  agreed  to  limit  their  naval  armament 
upon  the  lakes  forming  the  boundary  between  this 
country  and  Canada. 

By  the  Webster-Ashburton  treaty,  Great  Britain  and 
this  country  agreed  in  1842  that  they  would  maintain 
a  naval  force  on  the  coast  of  Africa  for  the  suppres- 
sion of  the  slave  trade. 

By  the  Clayton-Bulwer  treaty  of  1850,  between  Great 
Britain  and  the  United  States,  the  two  countries  guar- 
anteed the  neutrality  of  any  ship  canal  that  might  be 
built  between  the  Atlantic  and  Pacific,  and  agreed, 
among  other  things,  that  neither  nation  would  ever 
"obtain  or  maintain  for  itself  any  exclusive  control 
over  the  said  ship  canal,"  or  " erect  or  maintain  any 
fortifications  commanding  the  same  or  in  the  vicinity 
thereof,  or  occupy,  or  fortify,  or  colonize,  or  assume, 
or  exercise,  any  dominion  over  Nicaragua,  Costa  Rica, 
the  Mosquito  Coast  or  any  part  of  Central  America," 
or  ' '  take  advantage  of  any  intimacy  or  use  any  alliance, 
connection  or  influence  that  either  may  possess  with 
any  state  or  government  through  whose  territory  the 
said  canal  may  pass,  for  the  purpose  of  acquiring  or 
holding,  directly  or  indirectly,  for  the  citizens  or  sub- 
jects of  the  one  any  rights  or  advantages  in  regard 


SOVEREIGNTY  169 

to  commerce  or  navigation  through  the  said  canal 
which  shall  not  be  offered  on  the  same  terms  to  the 
citizens  or  subjects  of  the  other."  The  treaty  also 
provided  that  vessels  of  the  two  high  contracting 
parties  should  be  exempt  in  case  of  war  between  them, 
from  blockade,  detention  or  capture. 

In  1846,  by  Article  35  of  a  treaty  with  Colombia,  the 
United  States  guaranteed  "positively  and  effica- 
ciously .  .  .  the  perfect  neutrality"  of  the  Isthmus  of 
Panama.  In  1901,  the  Panama  Canal  treaty  was  made 
with  Great  Britain,  by  which  it  was  provided  that  the 
canal  could  never  be  blockaded,  and  that  no  act  of  hos- 
tility could  be  committeed  within  it. 

In  1903,  this  country  by  treaty  guaranteed  and 
agreed  to  maintain  the  independence  of  the  republic  of 
Panama. 

By  a  treaty  with  Honduras  in  1864,  the  United  States 
guaranteed  the  neutrality  of  the  Honduras  Railroad. 

In  1889,  by  treaty  with  Germany  and  Great  Britain, 
the  signatory  powers  recognized  the  neutrality  of  the 
Samoan  Islands  and  provided  that  the  three  powers 
should  have  equal  rights  within  the  islands. 

By  the  so-called  Bryan  treaties  "for  the  advance- 
ment of  peace"  made  by  the  United  States  with 
Guatemala,  Norway,  Portugal,  Great  Britain,  Costa 
Rica,  Spain,  Sweden,  Denmark,  France,  Uruguay, 
Peru,  Paraguay,  Italy,  Russia,  China,  Chile,  Ecuador, 
Honduras,  Brazil  and  Bolivia,  we  have,  in  practically 
identical  language,  agreed  that  disputes  arising  be- 
tween this  country  and  the  other  countries  named  shall 
be  submitted  for  investigation  and  report  to  an  inter- 
national commission,  and  that  while  such  investigation 
is  proceeding  we  will  not  resort  to  war  for  the  satis- 
faction of  our  rights.  Even  questions  of  national 
honor  and  vital  interest  are  not  excluded.     The  com- 


170  PAPERS  AND  ADDRESSES 

mission  is  to  be  so  selected  that  in  most  cases  a  major- 
ity of  the  commission  will  come  from  nations  other 
than  those  who  are  parties  to  the  dispute.  Finally, 
by  the  "favored-nation"  clauses  of  our  commercial 
treaties,  we  have  acted  on  a  principle  not  very  different 
from  that  underlying  the  economic  boycott  provided 
for  in  Article  XVI. 

Thus,  under  the  treaty-making  power  we  have  made 
covenants  for  the  reduction  of  armament,  the  mainte- 
nance of  armed  forces  in  foreign  territory,  the  fixing 
of  boundaries,  the  maintenance  of  neutrality  of  terri- 
tory belonging  to  other  nations,  the  guarantee  of  the 
independence  of  other  nations,  the  compulsory  arbitra- 
tion of  disputed  matters,  with  the  postponement  of 
war  during  that  process,  the  participation  by  this 
country  with  other  countries  in  the  affairs  and  govern- 
ment of  backward  nations,  a  restriction  upon  the  right 
to  erect  fortifications  for  the  protection  of  property 
in  which  this  country  is  interested  and  with  reference 
to  which  it  assumes  a  responsibility,  and  an  appropria- 
tion of  money  in  order  to  make  all  such  covenants 
effective.  Excepting  that  it  deals  in  a  single  treaty 
with  a  greater  number  of  nations  and  a  greater  variety 
of  subjects,  the  covenant  of  the  League  does  not  re- 
quire an  invasion  of  the  sovereignty  of  the  United 
States  to  a  greater  extent  than  that  involved  in  such 
covenants  as  these. 

Provisions  conferring  powers  upon  the  Council  have 
been  pointed  to  as  an  excessive  delegation  of  sover- 
eignty. But  the  power  delegated  is  no  greater  than 
that  conferred  by  the  Bryan  treaties  upon  arbitrators, 
a  majority  of  whom  may  be  foreigners,  and  it  is  far 
less  than  that  by  which  the  members  of  the  Postal 
Union  renounced  their  important  government  prerog- 
ative of  fixing  rates  of  foreign  postage.     The  Council 


SOVEREIGNTY  171 

was  necessary  for  purposes  of  administration,  but  it 
has  no  power  to  commit  the  League.  It  can  only  make 
recommendations  and  even  such  advisory  action  can 
be  prevented  by  the  veto  of  a  single  member  of  the 
Council. 

Finally,  the  real  question  is  whether  the  restriction 
upon  sovereignty  is  justified  by  the  expected  result 
for  which  it  is  imposed.  No  loftier  purpose  can  be 
sought  for  by  any  nation  than  the  maintenance  of 
peaceful  relations  with  other  nations,  and  nothing  will 
so  clearly  justify  for  its  accomplishment  an  appropri- 
ate surrender  of  sovereignty.  If  Articles  X,  XII, 
XIII,  XV  and  XVI  are  effective  to  that  end,  it  may 
with  truth  be  said,  as  Sir  Frederick  Pollock  said  of 
the  Bryan  treaties,  that  if  they  result  in  undue  detrac- 
tion from  our  national  independence,  then  such  "inde- 
pendence is  a  kind  of  legal  fiction  hardly  worth  preserv- 
ing, like  the  absolute  and  individual  sovereignty  of 
certain  publicists,  which,  unfortunately  for  their  doc- 
trine, it  is  impossible  to  find  in  the  Government  of  the 
United  States,  or  in  any  Federal  Constitution." 

CONSTITUTIONALITY 

The  Covenant  of  the  League  of  Nations  is  a  treaty, 
and  the  validity  of  its  provisions  must,  therefore,  de- 
pend upon  the  Federal  Constitution  which  confers  on 
the  President  the  "power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  senators  present  concur."  As  by  the 
same  instrument  treaties  are  made  "the  supreme  law 
of  the  land,"  the  President  and  the  Senate  in  making 
a  treaty  enact,  or  at  least  initiate,  what  is  in  the  nature 
of  legislation,  and  they  are  made  the  agents  of  the  peo- 
ple for  that  purpose.     But  a  certain  school  of  pub- 


172  PAPERS  AND  ADDRESSES 

Heists  have  asserted  that  a  treaty  dealing  with  matters 
requiring  supplementary  action  by  Congress,  as,  for 
instance,  a  declaration  of  war,  should  expressly  pro- 
vide that  it  is  made  subject  to  action  by  the  House  of 
Representatives,  or  at  least  that  the  House  should  be 
consulted  before  a  treaty  is  agreed  to.  For  a  century, 
however,  the  President  and  the  Senate,  without  con- 
sulting the  House,  have  been  negotiating  treaties ;  and 
the  Supreme  Court,  whenever  the  question  has  arisen, 
has  held  that  while  they  could  not  agree  to  do  what  is 
forbidden  by  the  Constitution,  or  to  make  a  change  in 
the  government  of  the  United  States  or  of  one  of  the 
states,  or  to  cede  the  territory  of  one  of  the  states 
without  its  consent,  there  is  not  "any  limit  to  the 
questions  which  can  be  adjusted  touching  any  matter 
which  is  properly  the  subject  of  negotiation  with  a 
foreign  country." 

Most  treaties  which  have  been  made  by  the  United 
States  would  have  remained  empty  pacts  without  ac- 
tion by  Congress.  In  connection  with  the  present  dis- 
cussion it  is  pertinent  to  note  that  by  some  of  such 
treaties  we  have  guaranteed  the  territorial  integrity 
or  the  political  independence  of  some  foreign  nation, 
and  have  thus  committed  the  nation  to  war,  if  neces- 
sary, for  the  enforcement  of  the  guarantee;  while  by 
others  we  have  agreed  to  reduce  armament  on  the 
Great  Lakes,  to  maintain  a  naval  force  on  the  coast  of 
Africa  or  to  refrain  from  war  during  the  arbitration 
of  international  disputes ;  and  we  have  frequently  made 
treaties  requiring  the  appropriation  of  money  or  some 
economic  legislation  by  Congress  in  order  to  give  them 
effect.  But  the  President  and  the  Senate  have  never 
waited  in  making  such  treaties  for  action  by  Congress ; 
nor,  on  the  other  hand,  has  that  branch  of  the  govern- 
ment ever  failed  to  enact  necessary  legislation. 


CONSTITUTIONALITY  173 

There  would  be  no  constitutional  way  of  compelling 
Congress  to  take  action,  although  a  legal  discretion  to 
refuse  to  act  is  virtually  a  power  to  abrogate  a  treaty. 
Hamilton  sums  up  the  matter  thus: 

"The  House  of  Eepresentatives  has  no  moral  power 
to  refuse  the  execution  of  a  treaty  which  is  not 
contrary  to  the  Constitution  because  it  pledges  the  pub- 
lic faith.  ..."  And  Washington,  in  a  case  where  the 
question  arose  sharply,  said  that  "  every  House  of  Rep- 
resentatives has  heretofore  acquiesced  and  until  the 
present  time  not  a  doubt  or  suspicion  has  appeared  to 
my  knowledge  that  this  construction  was  not  the  true 
one ;  nay,  they  have  more  than  acquiesced,  for  till  now, 
without  controverting  the  obligation  of  such  treaties, 
they  have  made  all  the  requisite  provisions  for  carry- 
ing them  into  effect." 

Suggestions  have  been  made  that  treaties  of  such 
importance  as  the  League  of  Nations  should  not  be  en- 
tered into  by  the  President  without  ascertaining  the 
will  of  the  nation  and  of  the  representatives  of  the  peo- 
ple elected  to  the  House  of  Representatives.  But  we 
are  a  nation  governed  by  a  Constitution  and  there  is  no 
way  under  that  instrument  for  submitting  a  treaty 
directly  to  the  people  or  to  Congress  for  their  ap- 
proval; and  if  governmental  agencies  vested  with 
treaty-making  powers  should  attempt  to  do  so,  they 
would  be  evading  the  duty  clearly  imposed  upon  them 
by  the  Constitution. 

Furthermore,  it  would  not  be  possible  to  ascertain 
how  some  future  Congress  would  act.  If  the  senti- 
ments of  one  Congress  could  be  ascertained,  that  would 
be  no  assurance  that  the  next  Congress  would  be  of 
the  same  mind.  One  Congress  might  be  willing  to 
enforce  an  economic  boycott  under  Article  XVI  or  to 
take  military  measures  for  the  performance  of  the 


174  PAPERS  AND  ADDRESSES 

guarantee  of  Article  X,  while  another  would  not  assent 
to  such  action.  Congressional  action  would,  of  course, 
be  taken  under  the  circumstances  existing  when  a  con- 
crete situation  had  arisen;  and  in  the  vast  majority  of 
cases  it  would  be  impossible  to  forecast  those  circum- 
stances. It  would,  therefore,  be  a  futile  expedient  to 
procure  assurances  from  the  Congress  that  happened 
for  the  moment  to  be  in  power. 

It  is  quite  true  that,  as  the  President  and  Senate 
always  take  the  initiative  in  making  treaties,  Congress, 
in  enacting  supplementary  legislation  to  give  a  treaty 
effect,  acts  under  a  sort  of  coercion  due  to  the  fact  that 
duly  constituted  governmental  agencies  have  com- 
mitted the  nation  to  a  solemn  moral  obligation.  But 
this  situation  is  inevitable  under  the  distribution  of 
powers  under  the  Constitution,  and  it  no  doubt 
accounts  for  the  historical  fact  that  Congress  has  never 
refused  to  take  appropriate  legislative  action.  It  was 
this  phase  of  the  matter  that  led  President  Washing- 
ton, when  the  House  of  Representatives  sought  to  in- 
vestigate the  instructions  under  which  the  minister  of 
the  United  States  negotiated  the  Jay  treaty,  to  refuse 
to  send  to  the  House  the  papers  which  had  been  before 
him  when  the  treaty  was  signed,  and  to  say: 

"It  is  thus  that  the  treaty-making  power  has  been 
understood  by  foreign  nations,  and  in  all  the  treaties 
made  with  them  we  have  declared  and  they  have  be- 
lieved that  when  ratified  by  the  President  with  the 
advice  and  consent  of  the  Senate  they  became  ob- 
ligatory. ' ' 

THE  MONROE  DOCTRINE 

Article  XXI  of  the  revised  Covenant  of  the  League 
provides  as  follows: 


THE  MONROE  DOCTRINE  175 

Nothing  in  this  Covenant  shall  be  deemed  to  affect  the  val- 
idity of  international  engagements  such  as  treaties  of  arbi- 
tration or  regional  understandings  like  the  Monroe  Doctrine 
for  securing  the  maintenance  of  peace. 

It  is  asserted  that  this  article  does  not  adequately 
reserve  the  Monroe  Doctrine  because  it  is  not  a  "re- 
gional understanding"  and  its  purpose  is  not  the 
"maintenance  of  peace."  It  is  also  objected  that, 
although  the  Monroe  Doctrine  is  a  national  policy,  any 
dispute  concerning  its  reservation  in  Article  XXI 
shall  be  submitted  to  the  League  for  arbitration  or 
examination  under  Articles  XIII  or  XV.  The  reason 
for  these  objections  disappears  upon  an  examination 
of  the  general  purpose  of  the  League  and  the  character 
and  effect  of  the  Monroe  Doctrine. 

In  1823  a  number  of  South  American  states,  having 
thrown  off  the  yoke  of  Spain,  had  become  independent 
republics.  It  was  believed  that  the  European  powers 
constituting  the  Holy  Alliance  were  planning  to  over- 
turn the  independence  of  the  new  states  and  by  making 
them  colonies  of  an  European  state  to  introduce  in  this 
hemisphere  the  autocratic  monarchical  principle.  It 
was  to  frustrate  such  a  design  that  President  Monroe 
in  his  annual  message  to  Congress  said: 

"We  should  consider  any  attempt  on  their  part 
[the  part  of  European  powers]  to  extend  their  system 
to  any  portion  of  this  hemisphere  as  dangerous  to  our 
peace  and  safety";  and  "We  could  not  view  any  inter- 
position for  the  purpose  of  oppressing  them  [the  young 
American  Republics]  or  controlling  in  any  other  man- 
ner their  destiny,  by  any  European  power,  in  any  other 
light  than  as  the  manifestation  of  an  unfriendly  dis- 
position toward  the  United  States." 

The  principle  of  the  doctrine  thus  proclaimed  has 


176  PAPERS  AND  ADDRESSES 

been  so  developed  during  the  last  hundred  years  that  it 
now  includes  the  prohibition  of  attempts  by  foreign 
nations,  whether  by  war  or  purchase,  or  diplomatic 
intrigue,  to  make  territorial  acquisitions  or  establish 
new  strategical  footholds  upon  or  near  the  Western 
Hemisphere,  or  to  secure  political  advantage  in  the 
domestic  affairs  of  American  nations. 

The  Monroe  Doctrine  is  not  a  principle  of  interna- 
tional law.  It  is  a  national  policy  based  upon  the  right 
of  every  nation  to  protect  itself  against  acts  tending  to 
embarrass  it  in  preserving  its  own  national  interests 
or  political  institutions.  It  is  founded  upon  the  same 
right  as  the  familiar  concert  of  European  powers,  ex- 
cept that  it  affects  a  greater  number  of  nations  more 
widely  separated  geographically,  and  is  asserted  by 
a  single  powerful  nation  able,  without  the  sanction  of 
treaty  stipulations,  to  maintain  it.  It  does  not  become 
effective  so  much  by  the  acquiescence  of  the  American 
nations  subject  to  its  operation  as  from  its  recognition 
by  nations  of  other  parts  of  the  world  as  a  political 
policy  which  can  not  be  disregarded  by  them  except  at 
the  risk  of  war  with  the  United  States.  Since  the  Mon- 
roe Doctrine  is  thus  based  upon  an  inherent  national 
right,  it  is  entirely  consistent  with  the  principle  of 
mutual  self-protection  underlying  Article  X  of  the 
Covenant  of  the  League,  which  seeks  to  check  threat- 
ened "external  aggression"  affecting  "the  territorial 
integrity  and  existing  political  independence  of  all 
members  of  the  League." 

While  doubtless  Article  X  was  designed  primarily  to 
give  protection  to  the  seven  new  European  republics 
and  the  four  autonomous  nations  in  the  Near  East, 
created  under  the  Treaty  of  Peace,  and  probably  also 
to  France  and  Belgium,  in  its  broader  aspect  it  was 
intended,  to  use  the  words  of  the  Preamble  of  the  Gov- 


THE  MONROE  DOCTRINE  177 

enant,  "to  achieve  international  peace  and  security" 
by  discouraging  hostile  aggression  everywhere;  and 
so  far  as  it  prevents  an  European  or  an  Asiatic  nation 
from  interfering  with  the  territorial  integrity  or  the 
existing  political  independence  of  any  nation  of  the 
Western  Hemisphere,  it  accomplishes  in  that  part  of 
the  world  precisely  the  result  aimed  at  by  the  Monroe 
Doctrine.  And,  furthermore,  quite  independently  of 
the  new  Article  XXI,  the  United  States  would  undoubt- 
edly be  the  nation  called  upon  under  Article  X  to 
repel  an  aggression  upon  an  American  state,  because, 
not  only  would  its  political  interest  be  immediately 
involved,  but  also  because,  by  reason  of  territorial 
proximity,   it   could  most   conveniently  act. 

It  is  in  the  light  of  these  effects  of  Article  X  that  the 
express  recognition  of  the  Monroe  Doctrine  in  Article 
XXI  should  be  examined. 

It  is  argued  that  the  doctrine  itself  is  inadequately 
reserved  by  referring  to  it  as  a  "  regional  understand- 
ing." It  need  not  be  denied  that  this  descriptive 
phrase  was  not  the  best  that  could  have  been  selected 
to  define  the  Monroe  Doctrine,  although  the  doctrine 
is  "regional"  in  that  it  relates  to  a  particular  region 
and  is  an  "understanding"  in  that  it  is  widely  ac- 
cepted by  the  nations  of  the  world.  Probably  the 
draftsmen  of  Article  XXI,  the  majority  of  whom  were 
European  statesmen,  thought  it  unwise  to  attempt  to 
formulate  a  definition  of  an  American  political  policy, 
concerning  the  limitations  of  which  American  states- 
men have  not  always  themselves  agreed.  But  the  im- 
portant thing  is  that  the  Monroe  Doctrine  is  declared 
to  be  "valid,"  thus  rendering  its  continued  existence 
unaffected  by  the  Covenant ;  and,  as  the  common  under- 
standing in  this  country  of  its  character  and  effect  is 
consistent  with  the  principle  of  the  general  purpose 


178  PAPERS  AND  ADDRESSES 

of  the  Covenant,  as  indicated  in  Article  X  and  the 
other  articles  designed  to  preserve  the  peace  of  the 
world,  it  is  a  far  cry  to  argue  that  the  somewhat  inept 
use  of  the  phrase  "regional  understandings"  indi- 
cates that  the  high  contracting  parties  intended  by 
indirection  to  raise  doubts  as  to  the  complete  reserva- 
tion of  the  doctrine. 

No  definition  of  the  Monroe  Doctrine  having  official 
sanction  has  ever  been  given  except  by  Presidents  or 
Secretaries  of  State;  and,  except  in  the  few  concrete 
cases  that  have  required  its  application,  they  have  gen- 
erally contented  themselves  with  describing  its  histori- 
cal origin  and  the  general  principle  on  which  it  is 
founded.  Even  the  Senate,  in  ratifying  The  Hague 
convention  of  1907,  and  in  seeking  to  reserve  the  Mon- 
roe Doctrine,  referred  to  it  as  "our  traditional  attitude 
toward  purely  American  questions,"  leaving  the  char- 
acter of  that  "attitude"  as  much  subject  to  question  by 
the  signatories  as  it  had  been  before  the  reservation 
was  made.  And,  although,  on  the  one  hand,  Secretary 
Olney  in  1895,  in  the  Venezuelan  controversy,  said: 
' '  To-day  the  United  States  is  practically  sovereign  on 
this  continent  and  its  fiat  is  law  upon  the  subjects  to 
which  it  confines  its  interposition";  on  the  other  hand, 
President  Roosevelt  in  1901  said  that  the  Monroe  Doc- 
trine did  not  prevent  foreign  nations  from  collecting  by 
force  debts  owing  by  American  nations;  and  in  1866 
this  country  refused  to  protect  Chile  when  Spain  was 
bombarding  her  ports,  because  it  would  not  intervene 
in  wars  between  European  and  American  states  "if 
they  are  not  pushed  ...  to  the  political  point." 

These  references  serve  to  point  out  the  difficulty  of 
an  attempt  in  any  diplomatic  document  to  define  the 
Monroe  Doctrine. 

But  however  inept  it  may  be  to  refer  to  the  Monroe 


THE  MONROE  DOCTRINE  179 

Doctrine  as  a  "regional  understanding,''  Article  XXI 
correctly  describes  it  as  " securing  the  maintenance  of 
peace."  It  was  of  the  essence  of  the  doctrine  that  for- 
eign nations  should  not  be  permitted  to  implant  among 
the  nations  of  the  "Western  Hemisphere  autocratic  prin- 
ciples of  government  lest  they  should  become  a  menace 
to  the  free  institutions  of  the  United  States,  and  we 
might  again  have  to  resort  to  arms  for  the  maintenance 
of  the  principles  settled  by  the  Revolution ;  and  in  prac- 
tice the  dominance  of  this  country  in  the  affairs  of  the 
Western  Hemisphere  has  undoubtedly  saved  it  from 
repeated  exploitation  at  the  hands  of  European  and 
Asiatic  nations.  The  frequent  revolutions  in  South 
and  Central  America,  often  accompanied  by  the  seizure 
of  power  in  the  name  of  liberty  by  disloyal  and  unscru- 
pulous dictators,  would  have  afforded  tempting  oppor- 
tunities to  European  autocracies,  at  small  expense  and 
by  the  use  of  a  merely  nominal  force,  to  secure  a  perma- 
nent foothold  upon  this  continent,  gradually  establish- 
ing colonies  which  would  have  become  a  menace  to 
our  republican  institutions,  or  at  least  a  source  of 
national  disquietude.  All  of  this  has  been  prevented 
without  the  use  in  a  single  instance  of  military  force, 
by  the  Monroe  Doctrine,  which  is,  therefore,  aptly  de- 
scribed in  Article  XXI  as  "securing  the  maintenance 
of  peace." 

But  if  the  Senate  is  of  the  opinion  that  the  use  of 
the  words  "regional  understanding"  creates  any  doubt 
as  to  the  meaning  of  Article  XXI,  it  can,  in  ratifying 
the  treaty,  make  a  declaration  that  its  action  is  taken 
under  the  reservation  that  the  Covenant  is  to  be  so 
construed  as  to  leave  the  Monroe  Doctrine  unaffected. 
In  view  of  the  general  purpose  and  effect  of  the  League, 
referred  to  above,  such  a  reservation  would  not  be  re- 
garded as  a  substantial  amendment  of  the  Covenant. 


180  PAPERS  AND  ADDRESSES 

Upon  this  point  the  official  commentary  of  the  delegates 
of  Great  Britain  upon  the  revised  Covenant  is  particu- 
larly pertinent.  They  refer  to  the  Monroe  Doctrine 
and  similar  understandings  as  having  ''shown  them- 
selves in  history  to  be  not  instruments  of  national  am- 
bition but  guarantees  of  peace,"  and  add: 

"The  origin  of  the  Monroe  Doctrine  is  well  known.  It  was 
proclaimed  in  1823  to  prevent  America  from  becoming  a 
theatre  for  the  intrigues  of  European  absolutism.  At  first 
a  principle  of  American  foreign  policy,  it  has  become  an  in- 
ternational understanding,  and  it  is  not  illegitimate  for  the 
people  of  the  United  States  to  ask  that  the  Covenant  should 
recognize  this  fact. 

"In  its  essence  it  is  consistent  with  the  spirit  of  the  Cove- 
nant, and,  indeed,  the  principles  of  the  League  as  expressed 
in  Article  X  represent  the  extension  to  the  whole  world  of 
the  principles  of  this  doctrine;  while,  should  any  dispute  as 
to  the  meaning  of  the  latter  ever  arise  between  the  American 
and  the  European  powers,  the  League  is  there  to  settle  it. ' ' 

This  commentary  receives  especial  force  from  the 
facts  that  England  had  a  close  historical  connection 
with  the  proclamation  of  the  Monroe  Doctrine  in  1823 
and  that  in  the  Venezuelan  dispute  the  most  advanced 
claim  as  to  the  scope  of  the  doctrine  was  sharply  called 
to  her  attention.  No  delegation  at  the  Peace  Confer- 
ence probably  understood  better  than  that  of  Great 
Britain  how  the  Monroe  Doctrine  was  intended  to  be 
affected  by  Article  XXI. 

As  the  "validity"  of  the  Monroe  Doctrine  is  not 
"affected"  by  Article  XXI,  the  doctrine  is  excluded 
from  the  operation  of  the  Covenant.  If,  therefore,  a 
case  within  the  principle  of  the  doctrine  should  arise 
it  would  not  be  within  the  jurisdiction  of  the  League. 
Even  if  a  question  whether  the  doctrine  extended  to  a 
particular  situation  should  be  made  the  subject  of 


THE  MONROE  DOCTRINE  181 

inquiry  under  Article  XV,  there  should  be  little  doubt 
of  the  result;  for,  if  we  except  a  few  cases  where 
doubt  has  existed  as  to  the  applicability  of  the  doctrine, 
and  the  belated  assertion  of  President  Carranza  that 
it  is  nonexistent,  it  is  now  understood  by  all  the  nations 
of  the  world. 

But  it  is  too  late  to  have  forebodings  on  account  of 
the  remote  chance  that  a  question  concerning  the  Mon- 
roe Doctrine  may  have  to  be  submitted  to  arbitration  or 
inquiry  under  the  Covenant ;  for,  by  the  Bryan  treaties, 
ratified  by  the  Senate  in  1914  and  1915,  we  have  already 
agreed  with  Great  Britain,  France,  Italy  and  six  other 
European  nations,  as  well  as  with  Chile,  Brazil,  Peru 
and  seven  other  American  states,  that  all  disputes  of 
an  international  character,  including  those  affecting 
national  honor  and  vital  interests,  such  as  the  Monroe 
Doctrine,  shall  be  submitted  to  an  international  com- 
mission for  investigation  and  report,  and  that  pending 
such  report  war  will  not  be  declared  or  hostilities  com- 
menced. These  treaties  are  "international  engage- 
ments" and  their  validity,  within  the  reservation  of 
Article  XXI,  is  not  affected  by  the  Covenant.  Under 
the  Bryan  treaties,  therefore,  investigators,  a  majority 
of  whom  are  not  to  be  American  citizens,  would  have 
jurisdiction  to  consider  and  report  concerning  any  dis- 
pute arising  under  the  Monroe  Doctrine ;  and  while  the 
investigation  was  proceeding  this  country  would  be 
obliged  to  abstain  from  enforcing  the  doctrine,  how- 
ever exigent  the  situation  might  be. 

Under  such  circumstances  the  question  whether  Arti- 
cle XXI  adequately  reserves  the  rights  of  the  United 
States  under  our  traditional  national  policy  loses  much 
of  its  importance. 


THE  TREATY  IN  THE  SENATE 


VIII 

THE  TREATY  IN  THE  SENATE  1 

Why  the  Paris  Covenant  Cannot  Be  Amended  With- 
out Postponing  the  Peace  the  World  Needs 

If  Section  I  of  the  treaty  with  Germany,  being  the 
Covenant  of  the  League,  is  amended  by  the  Senate, 
neither  the  treaty  as  a  whole  nor  any  of  its  provisions 
can  become  effective  either  to  restore  peace  or  for  any 
other  purpose  until  it  has  been  ratified  in  its  amended 
form  by  all  of  the  signatory  nations. 

Late  dispatches  indicate  that  the  treaty  provides 
that  it  will  become  operative  when  signed  by  Germany 
and  three  of  the  principal  allied  powers.  Thus,  after 
Germany  shall  have  signed  the  treaty,  Great  Britain, 
France  and  Japan  or  Italy,  by  ratifying  it,  will  imme- 
diately be  able  to  enjoy  the  advantages  of  a  resumption 
of  their  commercial  activities  under  peace  conditions, 
while  our  enjoyment  of  the  same  advantages  will  be 
delayed  until  amendments  made  by  the  Senate  shall 
have  been  formally  accepted  by  all  of  the  signatories. 
Not  only  would  such  delay  prevent  us  from  engaging 
in  international  trade  on  equal  terms  with  the  nations 
signing  the  treaty,  but  our  internal  trade  would 
continue  to  be  shackled  by  such  things  as  the  fixing  of 
prices  of  wheat  and  other  commodities,  the  necessity 
for  obtaining  freight  and  shipping  licenses,  the  activ- 
ities of  the  Alien  Property  Custodian,  and  other  like 
restrictions,  most  of  which  under  the  law  remain  effec- 
tive until  a  state  of  peace  has  been  proclaimed  by  the 
President. 

i  Paper  reprinted  from  an  article  published  in  the  New  York  Times 
of  May  30,  1919. 

185 


186  PAPERS  AND  ADDRESSES 

THE    WAR    CANNOT    BE     ENDED    BY    JOINT    RESOLUTION     BY 

CONGRESS 

It  has  been  suggested  that  because  Congress  has 
power  to  declare  war  it  has,  by  necessary  inference, 
the  power  to  end  it  by  joint  resolution.  Such  a  theory 
is  based  on  an  interpretation  of  the  distribution  of 
powers  under  the  Constitution  contrary  to  all  prece- 
dent, is  inadmissible  upon  any  reasonable  theory  of 
implied  powers,  and  is  contrary  to  uniform  historical 
practice. 

The  war  has  required  the  regulation,  and,  to  a 
greater  or  less  extent,  the  requisitioning  of  a  large 
part  of  the  industrial  and  transportation  facilities  of 
the  nation.  Personal  and  property  interests  and  con- 
tract rights  of  an  infinite  variety  and  involving  im- 
mense sums  of  money,  are  governed  by  special  rules 
of  law  applicable  during  a  state  of  war  and  by  num- 
erous special  war  measures,  and  these  cannot  be  put 
on  a  definite  legal  peace  basis  except  by  a  formal  treaty. 
Indeed,  some  of  the  war  statutes  provide  that  their 
provisions  shall  remain  effective  until  the  ratification 
of  a  treaty  of  peace,  and  others  until  peace  shall  be 
proclaimed  by  the  President;  and  important  private 
contracts  frequently  provide  that  their  obligations 
shall,  or  may,  at  the  option  of  the  parties,  be  termin- 
ated upon  such  ratification  or  proclamation.  A  peace 
treaty  can  only  be  ratified  in  the  constitutional  manner, 
and  it  is  absurd  to  suppose  that  the  President  would 
proclaim  it  before  such  ratification.  If  Congress 
should  attempt  by  joint  resolution  to  declare  that  peace 
had  been  restored,  such  a  condition  of  doubt  and  con- 
fusion concerning  a  multitude  of  transactions  legally 
affected  by  the  war  would  be  created,  that  there  would 
be  brought  down  on  the  heads  of  Congressmen  such  uni- 


THE  TREATY  IN  THE  SENATE    187 

versal  condemnation  that  we  are  safe  in  assuming  that 
the  suggestion  for  such  action  will  never  be  treated 
seriously. 

HOW  AN   AMENDMENT  TO  THE  COVENANT  WILL  AFFECT  THE 

REST    OF    THE    TREATY 

The  treaty  with  Germany  is  made  by  the  twenty- 
seven  allied  and  associated  nations.  It  forms  a  large 
book,  containing  fifteen  sections  or  chapters,  the  first 
of  which  is  the  Covenant  of  the  League  of  Nations. 
The  Covenant  and  many  of  the  provisions  of  the  other 
sections  are  interdependent. 

The  much-discussed  Article  X  of  the  Covenant  binds 
all  members  to  preserve  "as  against  external  aggres- 
sion the  territorial  integrity  and  existing  political  in- 
dependence of  all  the  members  of  the  League."  This 
article  has  for  its  chief  purpose  the  preservation  of  the 
seven  new  European  nations  and  the  four  autonomous 
nations  in  the  Near  East  created  by  the  treaty ;  and  it 
is  the  only  provision  of  the  treaty  which  effectively 
gives  to  the  new  governments  the  sanction  of  the  com- 
bined support  of  all  of  the  signatory  nations.  Its 
omission  or  amendment  would  make  a  vital  change  in 
sections  of  the  treaty  other  than  that  containing  the 
Covenant.  Furthermore,  by  those  sections  important 
functions  are  directly  vested  in  the  League. 

Thus,  the  League  is  to  create  an  international  com- 
mission which  is  to  govern  the  Saar  Basin  for  fifteen 
years,  and  another  under  which  Danzig  is  to  be  gov- 
erned as  a  free  city.  If  Germany  ultimately  buys  the 
mines  in  the  Saar  Valley  from  France,  the  League  is 
to  determine  the  amount  of  coal  to  be  sold  annually  to 
France.  In  connection  with  the  neutralized  zone  east 
of  the  Rhine,  established  by  the  treaty  to  protect 
France  and  Belgium,  the  League  is  to  question  Ger- 


188  PAPERS  AND  ADDRESSES 

many  at  any  time  concerning  a  violation  of  neutrality. 
It  is  also  to  act  as  a  final  court  in  relation  to  the  estab- 
lishment of  the  Belgian-German  frontier  and  in  dis- 
putes as  to  the  Kiel  Canal.  Under  its  direction,  an  in- 
ternational conference  on  labor  is  to  be  held  in  October, 
and  it  is  also  to  establish  a  permanent  organization 
for  the  international  adjustment  of  labor  conditions. 
For  five  years,  and  under  conditions  of  reciprocity 
thereafter,  ships  of  the  allied  powers  are,  unless  the 
League  otherwise  decides,  to  enjoy  the  same  rights  in 
German  ports  as  German  vessels.  Riparian  states 
on  the  Danube  and  other  international  streams  are  to 
enjoy  advantages  in  relation  to  navigation,  subject 
to  an  appeal  to  a  special  tribunal  of  the  League,  which 
may  also  arrange  for  a  general  international  water- 
ways convention. 

Thus,  it  will  be  perceived,  the  League  is  to  perform 
functions  of  a  varied,  extensive,  and  highly  important 
character;  and  it  is  idle  to  talk  of  separating  from 
the  rest  of  the  treaty  Section  I,  by  which  the  League 
is  created,  or  materially  amending  its  provisions, 
without  dislocating  the  entire  scheme  of  the  treaty 
and  necessitating  a  resumption  of  the  formal  peace 
negotiations. 

WHAT  THE  SENATE  MAY  DO 

The  Senate  may,  of  course,  consider  the  Covenant 
independently  of  the  rest  of  the  treaty.  It  may  make 
its  own  position  clear  by  adopting  a  preliminary  reso- 
lution approving  all  the  sections  except  that  containing 
the  Covenant,  and  it  may  amend  the  Covenant  or  any 
part  of  the  treaty.  Such  an  amendment  may  even 
be  the  entire  omission  of  the  Covenant.  But  the  Sen- 
ate must  ultimately  take  some  definite  action  upon  the 
entire  treaty — amended  or  unamended.    If  such  action 


THE  TREATY  IN  THE  SENATE    189 

is  an  approval,  it  will  require  a  vote  of  "  two-thirds  of 
the  senators  present,"  although  before  such  final  ac- 
tion specific  amendments  may  be  adopted  by  a  ma- 
jority vote. 

But  an  approval  of  the  treaty,  subject  to  amend- 
ments, is  not  effective  to  make  it  operative  until  in  its 
amended  form  it  is  agreed  to  by  all  the  nations  who 
were  the  original  signatories. 

The  principle  applicable  to  such  case  was  stated  by 
Justice  Brown  of  the  Supreme  Court,  in  interpreting 
the  treaty  of  peace  with  Spain.  {The  Diamond  Rings, 
183  U.  S.,  176.)     He  said: 

"Obviously  the  treaty  must  contain  the  whole  contract 
between  the  parties,  and  the  power  of  the  Senate  is  limited  to 
a  ratification  of  such  terms  as  have  already  been  agreed 
upon  between  the  President,  acting  for  the  United  States,  and 
the  commissioners  of  the  other  contracting  power.  The  Sen- 
ate has  no  right  to  ratify  the  treaty  and  introduce  new  terms 
into  it  which  shall  be  obligatory  upon  the  other  power, 
although  it  may  refuse  its  ratification  or  make  such  ratifi- 
cation conditional  upon  the  adoption  of  amendment  to  the 
treaty." 

ALTERNATIVES   OPEN   TO  THE  SENATE 

If  the  Senate  should  notify  the  President  that  the 
Covenant  was  still  under  consideration,  but  that  the 
rest  of  the  treaty  had  been  approved,  the  President 
would  probably  wait  before  communicating  with  the 
other  signatories  until  final  action  upon  the  Covenant 
had  been  taken  by  the  Senate,  and  if  such  action  was 
not  taken  within  a  reasonable  time  he  would  notify 
them  that  the  treaty  had  been  rejected.  If,  on  the  other 
hand,  the  Senate  should  approve  the  ratification  of 
the  treaty  subject  to  an  amendment  striking  out  or  ma- 


190  PAPERS  AND  ADDRESSES 

terially  changing  the  Covenant,  two  courses  would  be 
open  to  the  President.  If  he  approved  the  amended 
treaty,  he  could  advise  the  other  nations  that  the  treaty 
would  be  ratified  if  the  amendments  were  agreed  to; 
and  if  they  were  agreed  to,  the  amended  treaty  would 
be  ratified  by  the  President  without  further  action  by 
the  Senate.  This  was  the  procedure  adopted  when  the 
Senate  amended  the  Jay  treaty  of  1794-95  by  suspend- 
ing the  operation  of  the  Twelfth  Article  relating  to  the 
trade  between  the  United  States  and  the  English  col- 
onies in  the  West  Indies. 

If,  however,  the  Senate's  amendment  should  not 
meet  with  the  approval  of  the  President,  he  could 
abandon  the  treaty.  That  was  done  where  the  Senate 
so  amended  the  so-called  "Taft-Knox"  arbitration 
treaties  with  France  and  Great  Britain  that  the  Presi- 
dent was  unwilling  to  press  the  negotiations  further. 

What  steps  the  law  and  procedure  of  other  nations 
would  require  them  to  take  in  the  event  of  an  approval 
by  the  Senate,  subject  to  amendments,  need  not  be 
fully  considered.  The  formalities  would  undoubtedly 
occupy  many  months  and  would  vary  among  the  numer- 
ous signatory  nations.  Amendments  might  be  agreed 
upon  through  the  ordinary  diplomatic  channels;  but 
it  is  more  probable  that  they  would  require  more  for- 
mal consideration,  and  perhaps  the  reassembling  of  the 
peace  delegates. 

APPROVAL  BY  THE  SENATE  WITH  A  DECLARATION  OF  ITS 
INTERPRETATION  OF  THE  TREATY 

It  not  infrequently  happens  that  doubt  arises  as  to 
the  meaning  of  some  clause  of  a  treaty.  It  has  already 
arisen  with  reference  to  Article  XXI  of  the  covenant 
relating  to  the  Monroe  Doctrine.     In  such  a  case  a  res- 


THE  TREATY  IN  THE  SENATE         191 

olution  may  be  passed  by  the  Senate  stating  its  under- 
standing of  the  meaning  and  effect  of  the  doubtful 
clause. 

This  is  done  where  a  treaty  is  capable  of  a  double 
interpretation,  or  is  obscure,  or  where  it  fails  alto- 
gether to  mention  some  matter  of  vital  importance  that 
may  be  affected.  Thus  the  Senate,  in  approving  the 
Algeciras  Convention  of  1906,  stated  that  it  under- 
stood that  the  participation  of  the  United  States  in 
the  conference  was  not  intended  to  indicate  a  depar- 
ture "from  the  traditional  American  foreign  policy 
which  forbids  participation  by  the  United  States  in 
the  settlement  of  political  questions  which  are  entirely 
European  in  their  scope."  Similarly,  in  the  second 
Hague  Convention  one  reservation  made  was  that  noth- 
ing the  treaty  contained  was  to  be  * '  so  construed  as  to 
require  the  United  States  of  America  to  depart  from  its 
traditional  policy  of  not  intruding  upon,  interfering 
with  or  entangling  itself  in  the  political  questions  of 
policy  or  international  administration  of  any  foreign 
state ;  nor  shall  anything  contained  in  the  said  conven- 
tion be  construed  to  imply  a  relinquishment  by  the 
United  States  of  its  traditional  attitude  toward  purely 
American  questions." 

Undoubtedly  such  reservations  as  these,  which  do  not 
purport  to  amend,  but  only  to  interpret  treaties,  do  not 
constitute  such  a  change  in  the  terms  of  the  treaties 
themselves  as  to  require  ratification  by  the  other  par- 
ties; and  when  the  treaties  are  ratified,  promulgated 
and  acted  under,  an  interpretation  so  reserved,  espec- 
ially if  not  seasonably  objected  to,  would  with  the 
lapse  of  time  become  increasingly  difficult  to  question. 

But  an  expression  of  the  Senate,  which,  though  pur- 
porting to  be  a  mere  interpretation,  seeks  to  introduce 
a  substantial  change,  is  in  fact  an  amendment.     Its 


192  PAPERS  AND  ADDRESSES 

adoption,  on  principles  already  referred  to,  amounts 
to  a  disapproval  of  the  treaty  and  requires  its  resub- 
mission as  amended  to  the  other  parties.  A  case  of 
that  kind  arose  under  the  Guadalupe-Hidalgo  treaty 
with  Mexico  in  1848  and  was  the  subject  of  a  contro- 
versy in  the  Senate. 

WHAT  MAY  AND  WHAT  MAY  NOT  BE  DONE  WITH  THE 
COVENANT    IN    THE    SENATE 

Article  XXI  of  the  Covenant  provides  that  "Nothing 
in  this  Covenant  shall  be  deemed  to  affect  the  validity 
of  .  .  .  regional  understandings  like  the  Monroe  Doc- 
trine for  securing  the  maintenance  of  peace."  If  the 
Senate  should  approve  the  treaty,  stating  that  its  ap- 
proval was  given  upon  the  understanding  that  the 
treaty  was  not  intended  to  affect  any  question  involv- 
ing the  maintenance  of  the  Monroe  Doctrine,  the  reser- 
vation would  not  affect  the  force  of  the  approval,  for 
the  reason  that  it  would  state  what  undoubtedly  was  the 
intended  meaning  of  Article  XXI. 

If,  however,  the  reservation  went  to  the  extent  of 
withholding  unconditional  assent  to  Article  X  of  the 
Covenant  and  attempted  to  qualify  the  obligation  im- 
posed by  that  article  by  either  specifying  a  limited  set 
of  circumstances  in  which  it  should  apply,  or  by  limit- 
ing the  period  during  which  it  should  be  effective,  it 
clearly  would  be  an  amendment  of  the  covenant  itself 
in  a  vital  and  important  particular. 

Mr.  Root's  proposed  amendment  of  the  covenant, 
providing  for  compulsory  arbitration  and  a  conference 
for  the  purpose  of  dealing  with  the  principles  of  inter- 
national law,  would  also  undoubtedly  constitute  an 
amendment  of  the  treaty  requiring  a  reopening  of 
negotiations.  But  his  reservation  as  to  the  "tradi- 
tional attitude  toward  purely  American  questions,"  so 


THE  TREATY  IN  THE  SENATE    193 

far  as  it  is  intended  to  reserve  any  question  affected  by 
the  Monroe  Doctrine,  probably  would  not  be  regarded 
as  a  material  amendment,  but  only  as  an  interpreta- 
tion of  the  treaty;  and  his  proposed  reservation 
against  the  submission  of  our  policy  regarding  ques- 
tions of  "the  admission  of  immigrants  to  the  decision 
or  recommendation  of  other  powers,"  being  undoubt- 
edly under  Article  XV  of  the  Covenant  "a  matter 
which,  by  international  law,  is  solely  within  the  domes- 
tic jurisdiction"  of  the  United  States,  would  not  be  at 
variance  with  the  provisions  of  the  treaty  or  regarded 
as  a  substantial  amendment.  His  suggested  amend- 
ment, however,  limiting  the  duration  of  the  obligations 
under  Article  X  so  as  to  permit  the  parties,  after  five 
years  and  by  giving  one  year's  notice  in  writing,  to 
terminate  them,  and  his  proposed  change  of  Article 
IX  in  relation  to  the  inspection  and  verification  of 
armament,  and  of  Article  XIV  providing  for  a  con- 
ference to  revise  the  Covenant  and  permitting  the  with- 
drawal of  a  member  on  one  year's  notice,  would  all  un- 
doubtedly come  within  the  category  of  amendments  to 
the  treaty  which,  if  adopted  by  the  Senate,  would  re- 
quire the  assent  of  all  parties  to  the  treaty  before 
ratification. 


WHAT  IS  TO  BE  DONE  WITH  OUR 
RAILROADS? 


IX 

WHAT  IS  TO  BE  DONE  WITH  OUR 
RAILROADS?1 

A  Plan  of  Reorganization  Suggested,  Under  Which 
the  Best  Features  of  Competition  and  Govern- 
ment Control  Can  Be  Retained 

In  a  recent  speech  before  the  General  Assembly  of 
Iowa,  Senator  Cummins  very  truly  said  that,  with  the 
exception  of  the  League  of  Nations,  the  most  important 
and  the  most  difficult  reconstruction  problem  confront- 
ing the  country  is  the  adjustment  of  the  relation  be- 
tween the  government  and  the  railroads.  Railroad 
managers,  holders  of  railroad  securities,  bankers,  la- 
bor leaders,  shippers,  state  railroad  commissions,  and 
others  have  proposed  plans  for  the  reorganization  of 
the  national  railroad  system.  But  in  most  of  these 
plans  the  authors  have  failed  sufficiently  to  heed  the 
admonition  of  Senator  Cummins  that  "  transportation 
by  railway"  must  be  regarded  "as  a  governmental 
function."  Yet  it  is  undoubtedly  that  consideration 
which  will  be  most  potent  with  Congress  when  it  comes 
to  deal  with  the  subject. 

While  the  experience  of  the  country  since  the  govern- 
ment took  over  the  railroads  has  inclined  public  opinion 
against  government  operation,  that  is  because  such 
operation  cannot  be  made  economical  or  efficient, — it 
is  not  because  the  people  have  ceased  to  believe  that 
the  ownership  of  railroads  is  affected  by  a  public  trust. 
Indeed,  if  the  public  had  not  become  convinced  that 
their  interests  would  not  be  best  subserved  by  govern- 

i  Reprinted  from  articles  published  in  the  Neio  York  Times  of  May 
6-7,  1919. 

197 


198  PAPERS  AND  ADDRESSES 

ment  operation,  it  is  probable  that  the  roads  would 
never  be  returned  to  private  operation ;  and  it  is  quite 
certain  that  when  they  are  returned  they  will  be  under 
much  closer  regulation  than  ever  before,  especially  if 
they  are  to  enjoy  a  government  guarantee  in  any  form. 

The  idea  is  now  quite  prevalent  that  the  railroads 
of  the  country  should  be  consolidated  into  a  compara- 
tively few  large  systems,  and  it  is  also  generally  con- 
ceded that  in  some  definite  way  their  credit  must  be 
established,  so  as  to  enable  them  in  the  future  to  pro- 
cure necessary  capital  requirements.  If  this  is  ac- 
complished through  a  government  guarantee,  ordinary 
business  considerations  will  lead  to  a  much  closer  asso- 
ciation between  the  government  and  the  railroads  for 
the  protection  of  the  government 's  obligation.  Indeed, 
with  a  more  direct  responsibility  resting  upon  the 
government  with  reference  to  both  rates  and  wages, 
the  arrangement  will  be  but  one  step  from  government 
ownership  and  operation,  and  its  success  will  largely 
depend  on  government  responsibility. 

An  adequate  plan  can  probably  be  worked  out  before 
the  expiration  of  the  period  within  which  under  the 
railroad  control  act  the  roads  must  be  returned  to  the 
companies.  If  the  government  had  decided  to  shorten 
this  period,  as  Mr.  McAdoo  proposed,  the  result  might 
have  been  a  return  to  pre-war  conditions,  modified  only 
by  amendments  of  the  anti-trust  law  and  other  similar 
statutes,  permitting  pooling  agreements  among  com- 
peting lines.  Such  a  result  would  have  been  extremely 
unsatisfactory. 

The  war  made  it  necessary  to  take  over  the  roads 
from  the  companies.  The  transfer  was  made  without 
undue  disturbance,  many  problems  were  thereby  au- 
tomatically settled,  which  in  normal  times  by  the  slow 
process   of  evolution  would  probably  have   occupied 


OUR  RAILROADS  199 

years  in  discussion,  and  an  opportunity  unexpectedly 
developed  for  a  permanent  solution  of  the  entire  rail- 
road problem.  But  a  mere  restoration  of  pre-war  con- 
ditions, even  if  combinations  and  pooling  agreements 
are  permitted,  would  probably  not  go  far  in  the  direc- 
tion of  settling  the  relations  between  the  government 
and  the  companies,  of  stabilizing  rates  and  wages  or  of 
improving  the  service ;  and  unless  we  succeed  in  making 
a  permanent  improvement  in  such  things  as  these,  we 
shall  not  have  made  the  best  of  the  opportunity  which 
the  war  has  fortuitously  opened  up.  For,  however  un- 
satisfactory some  features  of  government  operation 
have  been,  there  has  been  a  convincing  demonstration 
of  many  important  advantages  due  to  unified  control, 
and  the  lesson  would  be  largely  lost  if  the  roads  were 
turned  back  without  at  the  same  time  embodying  these 
advantages  permanently  in  the  transportation  system 
of  the  country.  Fortunately,  there  is  a  fair  prospect 
that  this  may  be  accomplished ;  but  it  wall  not  be  unless 
the  railroad  owners  become  reconciled  to  a  much  closer 
relationship  to  the  government  than  has  heretofore 
existed. 

A  PLAN  OUTLINED 

Having  in  view  the  foregoing  considerations,  I  sug- 
gest for  consideration  a  plan  of  reorganization  upon 
the  basis  of  the  following  general  lines,  viz : 

1.  Let  some  governmental  agency  divide  the  country 
into  regions  with  reference  to  existing  currents  of 
trunk-line  traffic,  and  in  such  a  manner  that  competi- 
tion shall  exist  between  groups  of  roads  in  one  region 
and  those  in  each  contiguous  region. 

2.  Create  in  each  region  a  federal  corporation  with 
one  class  of  stock,  and  one  class  of  bonds,  and  under 
contract  with  the  government  to  acquire,  by  the  issue 


200  PAPERS  AND  ADDRESSES 

of  these  securities  in  exchange  for  those  of  existing 
companies,  or  by  the  exercise  of  the  right  of  eminent 
domain,  all  of  the  roads  within  the  region. 

3.  Let  the  government  guarantee  (a)  interest  on  the 
bonds  at  such  a  rate  that  the  bonds  may  be  sold  at  not 
less  than  par,  and  (b)  dividends  on  the  stock  at  4  per 
cent.,  subject  to  a  readjustment  after  a  fixed  period  of 
years,  the  stockholders  to  be  entitled  to  receive  addi- 
tional dividends,  if  earned,  of  2  per  cent.,  and  to  share 
equally  with  the  government  any  net  earnings  in  excess 
of  an  aggregate  of  6  per  cent,  on  the  stock. 

4.  As  a  result  of  the  foregoing  the  government  will 
necessarily  participate  more  than  in  the  past  in  the 
fixing  of  both  rates  and  wages. 

FUNDAMENTAL  CONSIDERATIONS 

I.  Of  the  first  importance  is  the  creation  of  a  trans- 
portation system  which  will  be  an  effective  instrument 
for  the  development  of  the  social,  political,  economic 
and  commercial  life  of  the  nation.  This  cannot  be  done 
without  the  cooperation  of  the  general  public,  the  in- 
vesting public,  the  traveling  and  shipping  interests, 
labor,  organized  and  unorganized,  and  expert  railroad 
managers.  The  problem  is  complex  and  difficult.  It 
needs  for  its  solution  the  thoughtful  attention  of  every 
one  knowing  anything  about  the  subject  without  undue 
bias  caused  by  particular  interest.  It  is  no  time  for  a 
business  "trade"  in  the  ordinary  sense. 

II.  The  interest  of  the  present  owners  of  the  railway 
systems  must  next  be  considered.  To  fail  to  give  this 
just  and  sympathetic  consideration  would  result  in  a 
subtle  form  of  confiscation.  There  is  a  popular  mis- 
conception as  to  who  these  owners  are.  They  consist 
of  the  stockholders  and  the  bondholders.  While, 
through  long  association  with  particular  properties, 


OUR  RAILROADS  201 

certain  bankers  and  financial  interests  are  supposed  to 
own  some  railway  systems,  the  fact  is  that  far  more 
than  half  of  the  railroad  securities,  both  stock  and 
bonds,  now  outstanding,  is  owned  by  investors  either 
individually  or  through  such  financial  institutions  as 
savings  banks  and  life  insurance  companies.  It  is 
said  that  seventeen  billions  of  railroad  capital  are 
owned  by  50,000,000  people,  directly  or  indirectly.  The 
influence  that  bankers  have  exercised  in  the  manage- 
ment of  some  of  the  larger  systems  of  the  country  has 
not  been  based  upon  their  ownership  of  securities  of 
the  roads,  but  has  been  rather  due  to  small  investors 
seeking  their  advice  and  assistance.  Additional  rail- 
way capital  will  constantly  be  needed,  since  railroads 
are  never  finished,  and  it  must  continue  to  come  from 
the  millions  of  small  investors,  whether  under  govern- 
ment ownership  it  is  raised  by  the  sale  of  government 
securities,  or  under  private  ownership  through  the 
financial  operations  of  private  corporations.  In  either 
case  it  is  vital  that  new  financial  structures  be  so 
erected  that  investors  in  railroad  securities  be  not 
subjected  again  to  the  instability  which  the  govern- 
mental policy  of  the  recent  past  has  caused. 

PAST  EVILS  EEMEDIED 

It  is  undoubtedly  true  that  in  the  early  days  the 
questionable,  and  even  dishonest,  gains  of  railroad 
contractors  from  branch-line  construction  or  of  man- 
agers in  the  acquisition  of  extensions  in  which  they  had 
a  personal  interest,  overcapitalization,  stock  gambling, 
secret  rebates,  and  illegal  pooling,  were  common;  but 
through  bankruptcies  and  other  corporate  transmuta- 
tions the  water  has  been  largely  squeezed  out  of  rail- 
road securities,  the  sins  of  reactionary  and  rebellious 
railroad  managers,  owners  and  stock  jobbers  have  been 


202  PAPERS  AND  ADDRESSES 

expiated,  and  the  railroads  of  the  country  are  now 
owned  in  large  part  by  the  smaller  investors  who  have 
honestly  paid  for  their  stock  and  bonds  at  market 
prices.  For  a  long  time  after  the  Interstate  Commerce 
law  and  the  Anti-Trust  law  were  passed,  railroad  man- 
agers generally  adopted  the  unwise  policy  of  opposing 
efforts  of  governmental  agencies  designed  for  the  pro- 
per adjustment  of  the  relation  between  the  railroads 
and  the  government.  They  treated  the  Interstate 
Commerce  Commission  with  little  respect,  and  they  did 
nothing  of  a  constructive  character  to  help  to  solve  the 
problem.  But  remedies  were  finally  found,  although, 
as  often  results  from  excessive  opposition,  the  pendu- 
lum swung  too  far  and  the  legislative  and  adminis- 
trative correctives  became  too  radical,  with  the  result 
that  for  a  number  of  years  before  the  government  took 
over  the  railroads  the  companies  were  denied  bare 
justice  in  the  matter  of  rates,  their  lifeblood.  For 
some  time  before  the  war  the  Interstate  Commerce 
Commission  persistently  refused  to  heed  petitions  for 
increases  of  rates  which  were  generally  regarded  as 
meritorious,  and  Avere  certainly  needed  to  prevent 
financial  embarrassment.  It  is  largely  due  to  the  fact 
that  it  was  thought  that  the  railroads  were  not  being, 
and  would  not  be,  treated  with  justice,  that  the  credit 
of  the  railroads  became  seriously  impaired  by  investors 
refusing  to  buy  their  securities,  particularly  their 
bonds.  The  policy  of  the  government  has  not  been 
sufficiently  changed  in  the  management  of  the  railroads 
under  the  Federal  Control  act.  In  the  fixing  of  the 
standard  return  under  the  power  conferred  by  that 
law,  the  Director  General  has  sometimes  failed  to  give 
adequate  consideration  to  the  peculiar  conditions 
brought  about  bv  the  Interstate  Commerce  Commission 
itself,  through  its  refusal  for  several  years  to  establish 


OUR  RAILROADS  203 

just  rates,  and  particularly  in  the  case  of  the  weaker 
roads  which  needed  the  special  treatment  which  the 
law  permitted  the  Director  General  to  accord  to  them. 
Thus,  it  has  come  about  that  first  the  Interstate  Com- 
merce Commission,  by  refusing  to  raise  the  rates,  kept 
down  the  net  earnings,  and  then  in  fixing  the  standard 
return  the  Director  General  did  not  always  consider 
the  situation  which  the  government  itself  had  thus 
brought  about.  If  the  injustice  of  this  situation  is  not 
recognized  and  compensated  for  in  any  plan  that  may 
be  adopted,  not  alone  will  the  present  investor  be 
damaged,  but  the  difficulty  of  obtaining  money  for 
future  needs  will  be  greatly  increased. 

THE  LABOR  PROBLEM 

III.  Labor  must  be  fairly  treated,  and  the  power  of 
the  government  must  in  some  direct  or  indirect  way  be 
employed  to  accomplish  that  result.  A  fair  return  for 
labor  is,  of  course,  just  as  important  as  a  just  return 
to  capital.  Indeed,  many  thoughtful  observers  of 
world  conditions  believe  that  the  next  decade  is  to  be  an 
era  of  a  participation  by  labor  greater  than  ever  before 
in  the  profits  of  production  of  all  kinds.  Furthermore, 
in  the  past  the  fixing  of  wages  has  been  too  much  re- 
garded as  a  matter  solely  between  capital  and  labor — 
that  is,  between  owners  and  employees — and  satisfac- 
tory results  have  not  come  to  either  party.  In  the 
emergency  of  the  war,  the  government,  through  in- 
creased rates,  has  made  the  public  pay  for  the  increase 
of  wages,  and  hereafter,  whether  the  government  or  the 
companies  own  and  operate  the  roads,  the  interdepend- 
ence of  rates  and  wages  will  probably,  more  than  in 
the  past,  become  the  basis  of  all  calculation.  If  this  be 
true,  there  will  always  be  three  parties  involved  in  all 
wage  controversies,  viz:  the  owners  (especially  if  they 


204  PAPERS  AND  ADDRESSES 

have  an  interest  in  the  profits  in  excess  of  any  amount 
guaranteed  to  security  holders  by  the  government), 
the  employees,  and  the  government  representing  the 
public.  Any  increased  operating  cost,  caused  by  a  re- 
adjustment of  wages,  must  be  borne  by  the  owners  and 
the  public  in  some  just  proportion,  and  in  fixing  the 
proportion  the  government  will  be  interested  even 
more  than  the  owners,  who  will  have  the  larger  part 
of  the  return  upon  their  securities  assured  by  the  gov- 
ernment guarantee. 

STATE    REGULATION 

IV.  To  what  extent  state  utilities  commissions  shall 
continue  to  exercise  powers  of  regulation  is  an  import- 
ant question.  If  the  plan  proposed  above  is  adopted  it 
will  avoid  the  necessity  for  intervention  by  state  com- 
missions in  some  matters,  particularly  in  the  super- 
vision of  the  issue  of  corporate  securities.  So,  too, 
with  consolidated  systems  owned  by  federal  corpora- 
tions and  extending  through  a  number  of  states,  with 
their  most  important  traffic  having  an  interstate  aspect, 
there  will  probably  be  but  few  and  unimportant  intra- 
state rates  for  them  to  regulate.  Still,  there  will  re- 
main local  interest  which  can  be  dealt  with  by  state 
commissions  more  adequately  and  to  the  greater  satis- 
faction of  localities  than  by  a  distant  federal  commis- 
sion; and  in  such  matters  these  powers  should  not  be 
interfered  with. 

Further  Consideration  of  the  Principal  Features 

of  the  Plan 

1.     the  grouping 

It  would  be  necessary  in  each  region  to  take  into 
consideration  the  character  of  the  population  and  in- 


OUR  RAILROADS  205 

dustries,  the  climate,  the  probable  direction  of  develop- 
ment in  sparsely  settled  parts  of  the  country,  and, 
most  important  of  all,  the  maintenance  and  develop- 
ment of  a  healthy  competition  between  groups  of  roads 
in  contiguous  regions.  Competition  within  each  group 
would,  of  course,  have  to  be  eliminated.  Save  in  ex- 
ceptional cases,  splitting  up  (longitudinally)  of  exist- 
ing and  established  trunk  lines  would  have  to  be 
avoided. 

Consolidation  of  the  roads  within  each  region, 
through  voluntary  exchange  of  existing  securities  for 
those  of  new  federal  regional  corporations,  will  be 
induced  by  (a)  giving  regulatory  jurisdiction  of  inter- 
state transactions  to  a  local  federal  commission,  (b) 
making  such  government  guarantee  of  interest  and 
dividends  upon  bonds  and  stock  of  the  regional  corpor- 
ation as  will  make  an  exchange  of  securities  advan- 
tageous, and  (c)  clothing  each  regional  corporation 
with  powers  of  condemnation.  There  is  little  doubt 
that  a  plan  can  be  devised  which  will  hold  out  such 
inducements  to  the  large  systems  in  each  group  that  a 
consolidation  into  a  single  system  owned  by  a  federal 
corporation  can  be  accomplished  without  resorting, 
save  in  exceptional  cases,  to  the  right  of  eminent 
domain. 

The  complete  abolition  of  competition  resulting 
from  government  ownership  would  discourage  initia- 
tive and  ambition  on  the  part  of  railroad  managers, 
would  affect  the  morale  of  railroad  employees,  and 
would  remove  the  most  easily  available  comparative 
tests  of  results  of  operation.  But  a  well-balanced 
group  of  railroads  within  a  single  region  would  not  be 
essentially  different  from  one  of  our  great  industrial 
combinations,  and  economies  would  be  made  possible  on 
such  a  system  through  standardization  of  methods,  re- 


206  PAPERS  AND  ADDRESSES 

duction  of  expense  of  administration,  and  the  elimina- 
tion of  expensive  and  unprofitable  facilities  which  com- 
petition has  created;  and  these  results  would  more 
than  compensate  for  the  disadvantage  of  discontinu- 
ing intra-regional  competition.  If  fifteen  or  twenty 
groups  were  established  the  elimination  of  competi- 
tion in  any  one  group  would  be  far  less  in  proportion 
to  the  entire  transportation  business  of  the  country 
than  that  effected  by  such  combinations  as  the  United 
States  Steel  Corporation,  the  Packers'  combination, 
the  Standard  Oil  Company,  the  American  Sugar  Re- 
fining Company,  etc. 

But  even  if  eflficiencv  in  the  service  mav  to  some  ex- 
tent  be  impaired  by  the  proposed  combinations,  that 
is  a  disadvantage  which  is  far  outweighed  by  the  coun- 
tervailing advantages.  Without  some  grouping  sys- 
tem under  the  direct  supervision  of  regional  commis- 
sions, the  benefits  of  a  government  guarantee  of  securi- 
ties and  a  stabilization  of  rates  and  wages  can  prob- 
ably not  be  obtained,  for  if  the  government  is  to  as- 
sume a  larger  obligation  in  relation  to  these  matters,  it 
must  establish  a  supervising  organization  which  will  be 
adequate  for  the  protection  of  its  interests  as  a  partner 
in  the  enterprise.  But  neither  the  supervision  by  the 
government  nor  the  assured  return  upon  the  securities 
of  the  regional  companies  need  interfere  with  the 
quality  of  service  rendered  to  the  public.  Such  a 
grouping  of  roads  can  be  made  as  to  maintain  active 
competition  between  the  groups,  and  it  is  not  probable 
that  there  will  be  any  great  damage  through  elimina- 
tion of  competition  within  the  groups  themselves.  It 
is  fair  to  say  that  it  is  those  advocating  the  preserva- 
tion of  the  existing  corporations  that  lay  the  greatest 
stress  upon  the  supreme  importance  of  competition; 
and  their  desire  to  restore  the  old  order  of  things  may 


OUR  RAILROADS  207 

lead  them  to  over-accentuate  the  point.  But  it  is  evi- 
dent that  the  public  will  not  concede  the  advantages  of 
a  partial  copartnership  arrangement  unless  many  of 
the  existing  lines,  perhaps  unnecessary  altogether,  or, 
in  any  event,  maintained  under  uneconomical  condi- 
tions, are  so  consolidated  and  managed  as  to  avoid 
undue  waste. 

MAPPING    OUT    EEGIONS 

It  would  be  premature  to  attempt  now  to  map  out 
regions.  This  is  a  matter  that  must  be  dealt  with  by 
the  government  and  by  traffic  and  other  experts.  But 
an  illustration  will  serve  to  promote  discussion: 

In  the  territory  east  of  the  Mississippi  River  and 
north  of  the  Ohio  River,  the  east  and  west  traffic  be- 
tween New  York  and  New  England  on  the  east  and 
Chicago  on  the  west  would  be  the  determining  factor 
in  fixing  the  boundaries  of  regions.  The  natural 
grouping  would  center  around  the  New  York  Central 
and  the  Pennsylvania  systems.  With  the  former 
would  be  united  the  Delaware  &  Hudson,  the  Erie  and 
all  the  New  England  lines  (unless  it  were  deemed  ad- 
visable to  have  the  two  lines  in  competition  through  to 
Boston,  in  which  case  the  New  York  Central  could 
group  its  lines  around  the  Boston  &  Albany  and  the 
Pennsylvania  around  the  New  Haven).  With  the 
Pennsylvania  would  be  grouped  all  the  roads  in  New 
Jersey  and  Pennsylvania,  the  Baltimore  &  Ohio,  and 
perhaps  the  Chesapeake  &  Ohio.  Thus  would  be 
created  two  great  systems  competing  for  the  business 
between  Chicago  and  the  East  and  able  to  adopt  a 
multitude  of  economies,  now  impossible,  in  the  use  of 
their  numerous  lines.  South  of  Washington  groups 
would  naturally  trend  more  nearly  north  and  south; 
and  the  Southern  and  the  Louisville  &  Nashville  would 


208  PAPERS  AND  ADDRESSES 

probably  be  the  backbones  of  two  competing  groups, 
while  the  Illinois  Central  and  the  Missouri  Pacific 
would  be  the  natural  foundation  on  which  to  build 
two  groups  competing  for  the  business  from  Chicago 
to  the  South. 

A  proper  division  of  the  entire  country  would  prob- 
ably result  in  about  fifteen  or  twenty  groups. 

2.       PLANS    FOR   GUARANTEEING   INCOME 

A  number  of  methods  have  been  proposed  by  which 
a  minimum  net  return  may  be  guaranteed  by  the  gov- 
ernment. One  of  these  methods  seeks  by  Congressional 
edict  to  define  what  is  a  "  reasonable  rate, ' '  and  to  de- 
termine what  shall  be  the  net  return  upon  investments 
in  railroad  property,  while  another  would  arrive  at 
the  same  result  by  requiring  that  rates  be  fixed  at  a 
figure  which  will  produce  a  minimum  net  return.  Un- 
der still  another  plan  it  is  suggested  that  out  of  gross 
earnings  there  be  first  set  aside  fixed  proportions  to  be 
applied  preferentially  to  the  payment  of  interest  and 
dividends  on  new  securities.  All  such  plans,  when 
analyzed,  will  be  found  to  be  predicated  upon  an  as- 
sumption by  the  government  of  an  obligation,  either 
directly  or  indirectly,  to  fix  a  rate  schedule  and  to  deal 
with  wages  and  other  costs  in  such  manner  that  there 
shall  be  net  income  of  a  certain  amount  applicable  to 
the  payment  of  dividends  and  interest  upon  the  securi- 
ties of  the  companies.  In  other  words,  all  of  such 
suggestions  involve  a  government  guarantee  of  an  in- 
come upon  property  invested  in  railroads.  If  I  am 
right  in  this,  it  results  that,  whichever  plan  is  adopted, 
there  must  be  some  method  for  appraising  the  property 
investment  as  a  basis  for  estimating  the  income  which 
is  to  be  guaranteed  upon  it.     That  being  so,  it  seems 


OUR  RAILROADS  209 

to  me  that  the  direct  guarantee  of  the  income  upon 
the  securities  of  the  regional  companies  will  be  pre- 
ferable. In  the  first  place,  it  is  simpler  and  will  be  bet- 
ter understood.  In  the  second  place,  it  will  avoid  the 
uncertainties  attaching  to  action  by  Congress  or  the 
Interstate  Commerce  Commission  in  relation  to  rates 
and  the  complicated  financial  structures  suggested  by 
some  of  the  plans  which  contemplate  intricate  account- 
ings not  easily  understood.  The  indirect  form  of  gov- 
ernment guarantee  under  such  plans  would  undoubt- 
edly make  railroad  securities  less  marketable  than  if 
the  guarantee  were  direct,  and  to  that  extent  the  new 
companies  would  fail  to  receive  the  full  advantage 
which  would  undoubtedly  accrue  from  a  direct  guar- 
antee. The  credit  of  railroad  stock  and  bonds  with  a 
direct  government  guarantee  would  undoubtedly  be  as 
high  as  that  of  government  bonds  themselves.  The 
rate  of  income  guaranteed  should  be  fixed  so  that  both 
stock  and  bonds  would  realize  one  hundred  cents  on 
the  dollar,  thus  avoiding  destructive  discounts,  com- 
missions, and  expenses  which  have  for  many  years 
grievously  burdened  the  less  prosperous  railroads. 

It  is  quite  possible  that  in  working  out  a  plan  like 
that  proposed  it  might  be  necessary  for  the  protection 
of  the  government  to  put  it  in  a  position  where  by 
foreclosure  of  a  lien  or  perhaps  by  a  recapture  clause, 
it  may  obtain  possession  of  a  regional  railroad  for 
purposes  of  reorganization,  or  even  for  government 
operation.  The  connection  of  the  government  with 
the  new  systems  would  be  so  close  that  such  a  provision 
might  have  to  be  made  in  order  to  provide  for  un- 
expected contingencies. 

It  remains  to  comment  upon  the  suggestion  which 
has  been  made  in  some  quarters  that  the  government 


210  PAPERS  AND  ADDRESSES 

turn  back  the  railroads  to  the  old  corporations  with- 
out provision  for  enforced  elimination  of  uneconomical 
competition,  unification  of  management,  joint  use  of 
terminal  and  other  facilities,  or  similar  expedients 
looking  to  economy  and  efficiency.  It  is  not  probable 
that  the  people  of  this  country,  having  witnessed  some 
of  the  advantages  of  the  unification  made  necessary  by 
the  war,  and  having  seen  the  solution  of  the  railroad 
problem  advanced  many  years  as  a  result  of  the  in- 
terruption of  the  management  of  the  companies  by 
private  corporations,  will  now  tolerate  a  restoration  of 
the  old  conditions.  Certainly  they  will  not  concede  to 
the  owners  of  railroads  a  fixed  return  upon  their 
property  investments  if  they  are  to  continue  under 
the  old  corporate  control,  particularly  if  the  public  is 
not  at  the  same  time  to  be  given  some  assurance  con- 
cerning rates,  and  the  wage  question  is  not  to  be  satis- 
factorily adjusted.  Labor  will  see  as  much  reason  for 
obtaining  a  fixed  return  to  it  as  to  capital,  and  the 
traveling  public  and  shippers  will  be  unwilling  to  have 
rates  left  for  future  determination  unless  standardiza- 
tion and  economies  through  consolidation  give  promise 
of  economical  and  efficient  service.  Any  plan  for  gov- 
ernment guarantee  of  income  on  property  investment 
must  come  much  nearer  government  ownership  than 
that  which  contemplates  the  retention  of  the  roads  by 
the  old  corporations,  and  especially  because,  as  pointed 
out  above,  the  government  must  in  return  for  any 
guarantee  it  makes  be  put  in  a  position  where,  in  case 
the  new  system  breaks  down,  it  can  itself  take  posses- 
sion of  the  roads  and  try  some  other  form  of  opera- 
tion, as,  for  instance,  through  leases  to  operating  com- 
panies. 


OUR  RAILROADS  211 

3.       THE  BASIS  ON   WHICH   KOADS  ABE  TO  BE   ABSOBBED 

BY   REGIONAL    COBPOEATIONS   AND   THE    METHOD 

OF    DETEBMINING    SUCH    BASIS 

If  the  government  is  to  guarantee  a  return  on  the 
securities  issued  by  the  regional  corporations,  it  must, 
of  course,  be  assured  that  they  represent  the  value  of 
the  roads  consolidated  and  that  under  normal  condi- 
tions the  estimated  income  of  the  regional  group  will 
be  sufficient  to  reimburse  it.  Upon  such  an  estimate 
the  basis  of  exchange  of  securities  must  be  determined. 
Security  holders  will  not,  of  course,  in  all  cases  be 
satisfied  with  the  terms  proposed  by  the  government. 
But  the  fact  that  their  interests  may  be  acquired  under 
the  right  of  eminent  domain,  coupled  with  the  advan- 
tage attaching  to  a  government  guarantee,  will  no 
doubt  induce  nine-tenths  of  them  voluntarily  to  make 
the  exchange  proposed  by  the  government,  especially 
if  it  is  recommended  by  committees  of  security  holders, 
which  will  probably  be  afforded  the  opportunity  to  con- 
duct negotiations  with  the  government. 

In  the  case  of  minority  interests  refusing  to  accept 
the  terms  offered,  Congress  can  constitutionally  pro- 
vide that  the  regional  corporation  (or  perhaps  the  gov- 
ernment) may  acquire  the  physical  property  of  the 
roads;  or  it  might  suffice  to  condemn  the  stock  as  a 
means  of  gaining  complete  control. 

The  delay  and  expense  of  condemnation  proceedings 
are,  of  course,  to  be  regretted,  but  it  would  be  an  in- 
cident to  any  plan  of  consolidated  ownership,  whether 
by  the  government  or  by  a  regional  corporation.  Fur- 
thermore, any  delay  in  determining  the  compensation 
to  be  paid  to  the  individual  or  corporate  owners  would 
not  postpone  the  consummation  of  the  plan,  since  it 
would  be  legally  possible  to  provide  that  title  should 


212  PAPERS  AND  ADDRESSES 

vest  in  the  government  or  the  consolidated  corporation 
upon  the  commencement  of  the  proceedings,  and  thus 
possession  and  operation  by  the  regional  corporation 
could  be  assumed  at  once,  while  provision  could  also 
be  made  so  that  the  standard  return  or  the  net  income 
should  continue  to  be  applied  to  the  payment  of  interest 
and  dividends. 

THE    CONDEMNATION    METHOD 

The  simplest  method  of  acquiring  the  roads  would 
be  by  condemning  all  outstanding  stocks  and  bonds 
and  thus  securing  control  of  the  corporation,  since  in 
the  case  of  many  of  the  most  important  securities  an 
index  of  value  of  considerable  weight  and  easily  proven 
is  the  market  prices  established  during  a  number  of 
years  in  public  exchanges.  Such  prices  would  not,  of 
course,  be  conclusive;  indeed,  no  single  circumstance 
would  be  decisive,  and  it  would  be  open  to  an  owner  of 
securities  to  show  that  quoted  prices  did  not  represent 
real  value,  that  the  price  would  be  enhanced  by  a 
larger  volume  of  transactions,  that  the  quotations  were 
depressed  below  the  fair  value  bv  the  fact  that  the 
government  was  condemning  and  that  prospective  and 
speculative  value  was  not  fairly  reflected  in  the  market. 
Perhaps  even  physical  valuation  might  be  resorted  to, 
aud  certainly  the  income-producing  power  of  the  com- 
pany under  normal  conditions  when  not  affected  by  the 
war,  by  recent  reorganization,  or  by  some  other  temp- 
orary or  adventitious  circumstances,  would  be  pert- 
inent. At  best,  the  subject  of  fixing  values  is  a  com- 
plex one  and  generally,  as  in  commercial  bargaining, 
appraisers  arrive  at  results  by  " splitting  differences." 

It  is  by  no  means  certain  that  bonds  could  be  ac- 
quired under  the  right  of  eminent  domain,  and  it  would 
not  be  wise  to  resort  to  that  process  if  it  threatened 


OUR  RAILROADS  213 

seriously  to  affect  the  stability  of  market  values.  It  is 
not  improbable,  however,  that  the  prospect  of  receiving 
new  securities,  guaranteed  by  the  government,  would 
favorably  affect  the  market  for  many  bonds. 

4.       GOVERNMENT    GUARANTEE   AND    PROFIT-SHARING 

The  impairment  of  the  credit  of  the  railroads  before 
the  war  not  only  depressed  the  market  value  of  rail- 
road securities,  but  it  compelled  railroads  to  pay  exces- 
sive rates  of  interest.  The  experience  of  the  roads 
with  the  Bureau  of  Railroad  Administration  has  not 
tended  to  improve  the  situation.  The  long  delay  in 
negotiating  the  contract,  the  reluctance  in  some  cases 
in  fixing  the  standard  return  to  recognize,  in  the  case 
of  roads  recently  in  difficulties,  the  existence  of  condi- 
tions making  the  three  years'  average  an  insufficient 
test,  and  the  delay  in  paying  over  even  90  per  cent,  of 
the  guaranteed  income,  have  contributed  to  affect  the 
credit  of  the  roads.  Some  of  the  more  prosperous 
roads  have  suffered  less  than  those  less  favored,  but  it 
may  with  truth  be  said  that  the  financial  credit  of  the 
roads  of  the  country  as  a  whole  has  been  so  affected 
as  to  make  them  unable  permanently  to  discharge  their 
public  functions  as  efficiently  as  the  people  have  a 
right  to  expect.  If  a  change  for  the  better  is  not  possi- 
ble within  a  few  years  the  country  will  be  driven  sooner 
or  later  to  government  ownership.  If  the  advantages 
of  private  operation  can  be  retained  under  such  gov- 
ernment regulation  as  will  insure  the  adequate  accom- 
modation of  the  public,  it  would  be  in  the  public  interest 
that  that  result  should  be  striven  for,  but  it  cannot  be 
obtained  unless  the  railroads  receive  from  the  govern- 
ment a  guarantee  of  a  fair  return  on  their  property. 
Such  a  guarantee  would  have  such  a  moral  effect  that 
the  roads  could   immediately  procure,  at  reasonable 


214   .  PAPERS  AND  ADDRESSES 

rates  of  interest,  all  needed  funds  for  improvement, 
extensions,  betterments  and  equipment. 

If  security  were  required  to  insure  the  government 
against  loss  on  account  of  its  guarantee,  it  could  be 
secured  by  suitable  provision  in  an  open  mortgage 
securing  the  bonds  so  that  on  foreclosure  the  govern- 
ment could  either  purchase  the  road  and  operate  it,  or 
lease  it  to  an  operating  company.  It  would  be  possible 
to  provide  for  an  unlimited  amount  of  guaranteed 
bonds  to  be  sold  at  not  less  than  par,  all  ranking  pari 
passu  and  equally  secured  by  such  a  mortgage. 

The  government  guarantee  on  the  stock  should  in- 
sure a  fixed  return  to  be  determined  by  the  estimated 
minimum  net  earnings  of  the  company  in  a  region,  all 
net  earnings  up  to  6  per  cent,  to  go  to  the  company  and 
anything  in  excess  of  that  amount  to  be  equally  divided 
between  the  stockholders  and  the  government.  Prob- 
ably a  guaranteed  dividend  of  4  per  cent,  would  be 
practicable.  It  might  be  necessary  to  provide,  how- 
ever, that  if  after  some  fixed  period  changed  condi- 
tions required  it,  there  should  be  a  readjustment,  ef- 
fective for  another  fixed  period,  in  respect  of  the  dis- 
tribution of  any  earnings  in  excess  of  the  guaranteed 
4  per  cent.  Such  an  arrangement  as  this  would  be 
justified  by  the  advantage  resulting  to  the  public  from 
the  restoration  of  confidence  in  the  railroads,  the  elim- 
ination of  wasteful  construction  and  operation,  and  the 
prospective  return  to  the  government  from  the  profits 
of  the  enterprise,  particularly  since  the  government 
could  be  safeguarded  in  case  of  a  failure  to  earn  an 
amount  equal  to  the  guaranteed  interest,  by  provisions 
under  which,  in  case  of  such  default,  the  government 
could  possess  itself  of  the  property. 


OUR  RAILROADS  215 

5.       WAGES    AND   RATES 

The  plan  would  tend  to  solve  both  the  labor  and  the 
rate  problem.  Rates  and  wages  are  the  two  factors  on 
which  more  than  any  other  the  prosperity  of  railroads 
depends.  Rates  would  be  fixed  by  some  government 
agency  which  would  be  interested  to  see  that  they  were 
fair,  since  the  guarantee  of  the  government  and  the 
profit-sharing  features  make  it  a  partner  in  the  enter- 
prise. If  the  demands  of  labor  should  disturb  the 
equilibrium  of  the  conflicting  interests  the  government 
would  be  confronted  with  the  alternative  of  (1)  making 
good  a  part  of  its  guarantee  and  losing  its  share  over 
the  guaranteed  amount  of  earnings,  or  (2)  authorizing 
an  increase  in  rates  to  meet  the  increased  wage  scale, 
or  (3)  using  its  power  under  appropriate  legislation 
through  suitable  commissions  to  regulate  and  stand- 
ardize wage  scales.  In  other  words,  the  proposed  plan 
would  tend  to  tie  up  wages  and  rates  in  such  manner 
that  they  would  be  interdependent. 


RECALL  OF  DECISIONS 


RECALL  OF  DECISIONS  1 

A    MODERN    PHASE    OF    IMPATIENCE    OF 
CONSTITUTIONAL   RESTRAINTS 

The  function  of  the  judiciary  branch  of  the  govern- 
ment is  to  try  and  decide  controversies  according  to 
law  and  justice,  without  being  swayed  by  considera- 
tions of  governmental  or  political  expediency,  or  by 
what  judges  suppose  to  be  the  temporary  desires  of  a 
majority  of  the  electorate.  In  the  distribution  by  the 
Federal  Constitution  of  the  powers  of  government,  the 
judicial  department  was  made  free  of  checks  upon  its 
powers  like  those  imposed  upon  the  executive  and  legis- 
lative departments.  After  the  judges  had  been  ap- 
pointed by  the  President  and  confirmed  by  the  Senate, 
and  their  salaries  had  been  fixed  by  Congress,  they 
were  to  hold  office  during  good  behavior  and  their 
salaries  were  not  to  be  reduced  during  their  terms  of 
office.  Hamilton  explains  the  reason  for  these  pro- 
visions as  follows : 

"The  complete  independence  of  the  courts  of  justice  is 
peculiarly  essential  in  a  limited  constitution.  By  a  limited 
constitution  I  understand  one  which  contains  certain  specified 
exceptions  to  the  legislative  authority;  such,  for  instance, 
as  that  which  shall  pass  no  bills  of  attainder,  no  ex  post  facto 
laws,  and  the  like.  Limitations  of  this  kind  can  be  preserved 
in  practice  no  other  way  than  through  the  medium  of  courts  of 
justice,  whose  duty  it  must  be  to  declare  all  acts  contrary  to 
the  manifest  tenor  of  the  Constitution,  void.  Without  this, 
all  the  reservations  of  particular  rights  or  privileges  will 
amount  to  nothing." 

i  Paper  read  at  the  annual  meeting  of  the  New  York  State  Bar  Asso- 
ciation, held  in  Utica,  N.  Y.,  January  24-25,  1913. 

219 


220  PAPERS  AND  ADDRESSES 

While  the  judges  are,  therefore,  made  essentially  in- 
dependent, it  is  impossible  for  them,  for  any  long 
period,  to  deprive  either  of  the  other  branches  of  the 
government  of  their  constitutional  powers,  or  to  rob 
the  people  themselves  of  any  of  the  rights  which  are 
essential  to  their  enjoyment  of  civil  liberty,  because 
there  is  not  placed  in  their  hands  any  machinery  by 
which  judicial  aggressions  can  be  made  effective. 
Their  judgments  can  only  be  executed  through  civil 
officers  like  sheriffs  and  marshals,  and  these  become 
quite  powerless  if  they  are  opposed  by  the  other  de- 
partments of  the  government  or  by  the  people  them- 
selves. Furthermore,  the  political  effect  of  a  judg- 
ment involving  the  most  important  constitutional  ques- 
tion may  be  entirely  nullified,  or  it  may  be  rendered, 
by  force  of  public  opinion,  largely  academic.  As  de 
Tocqueville  said,  the  judges  defend  "the  conservative 
spirit  of  stability  against  the  fickleness  of  the  democ- 
racy. Their  power  is  enormous,  but  it  is  the  power  of 
public  opinion.  They  are  all-powerful  as  long  as  the 
people  respect  the  law;  but  they  would  be  impotent 
against  popular  neglect  or  contempt  of  the  law. ' '  And 
Hamilton  says  of  the  judiciary,  that  "it  may  truly  be 
said  to  have  neither  force  nor  will,  but  merely  judg- 
ment ;  and  must  ultimately  depend  upon  the  aid  of  the 
executive  arm  even  for  the  efficacy  of  its  judgments." 

But,  however  impotent  the  courts  are  to  seize  polit- 
ical control  of  the  government,  their  power,  when  sup- 
ported by  public  opinion,  to  impose  upon  the  people  the 
restraints  provided  for  in  the  Constitution,  is  more 
majestic  than  that  possessed  by  any  other  judicial  body 
in  the  history  of  the  world ;  and  it  is  this  power,  which 
more  than  any  other,  has  at  critical  junctures  protected 
us  against  excesses  of  partisan  zeal,  has  given  to  our 
government  the  stability  which  has  enabled  it  to  sur- 


RECALL  OF  DECISIONS  221 

vive  and  has  enabled  us  to  enjoy  the  inestimable  ben- 
efits of  a  representative  form  of  government  which 
have  been  denied  to  other  nations  having  written  con- 
stitutions no  less  perfect  in  theory  than  our  own. 
President  Hadley  has  very  aptly  said : 

"Legislature  and  executive  are  means  given  to  allow  the 
people  to  do  what  they  please,  under  certain  constitutional 
forms.  The  judiciary  is  a  means  given  to  prevent  the  people 
from  doing  what  they  please.  How  can  we  explain  the  fact 
that  these  judicial  restrictions  are  of  the  very  essence  of 
freedom?  I  answer  because  the  law  of  the  United  States,  as 
defined  and  administered  by  its  courts,  represents  not  only 
restraint,  but  seZ/-restraint ;  and  a  kind  of  self-restraint  which 
any  nation  must  be  prepared  to  exercise  if  it  hopes  perma- 
nently to  enjoy  the  advantages  of  political  freedom." 

De  Tocqueville  asserts  that  without  its  restraints  the 
"  Constitution  would  be  a  dead  letter. "  And  Webster 
says  "that  the  maintenance  of  the  judicial  power  is 
essential  and  indispensable  to  the  very  being  of  this 
government.  The  Constitution  without  it  would  be  no 
constitution;  the  government  no  government.  .  .  . 
The  judicial  power  is  the  protecting  power  of  the  whole 
government.     Its  position  is  upon  the  outer  wall." 

The  working  out  of  the  plan  for  the  division  of 
powers  between  the  executive  and  the  legislative  de- 
partments of  the  national  government  has  not  been 
precisely  what  the  framers  of  the  Constitution  antici- 
pated. It  is  doubtful  whether  these  departments  could 
have  conducted  the  business  of  the  government  with- 
out destructive  friction  if  political  parties  had  not  at 
an  early  day  become  the  convenient  medium  for 
promptly  and  effectively  organizing  public  sentiment 
as  a  force  to  compel  the  reasonable  adjustment  of 
conflicting  views.     The  judicial  department,  however, 


222  PAPERS  AND  ADDRESSES 

has  to  a  large  extent  fulfilled  in  practice  the  function 
which  was  in  theory  vested  in  it  by  the  Constitution ; 
and  the  same  may  be  said  with  general  accuracy  of  the 
judiciary  of  the  several  states  as  constituted  under 
the  state  constitutions.  But  now  it  is  said  that  some 
of  the  courts  have  become  slow  to  respond  to  the  throb 
of  popular  impulse,  or,  when  called  upon  to  interpret 
constitutions,  to  make  their  judgments  conform  to 
modern  ideas  of  social  and  industrial  justice,  or  to 
adopt  a  philosophy  abreast  of  the  times.  We  are  told 
in  the  heat  of  a  presidential  campaign,  that  funda- 
mental questions  which  have  always  been  regarded  as 
judicial  questions,  should  no  longer  be  finally  decided 
by  the  courts  but,  on  appeal,  by  a  vote  of  a  temporary 
majority  of  the  electorate.  It  is  startling  to  the  pres- 
ent generation  that  such  an  attack  upon  the  power  of 
the  judiciary  should  be  made  by  a  conspicuous  states- 
man as  part  of  the  propaganda  of  a  political  campaign ; 
but  a  brief  review  of  our  political  history  will  show 
that  the  judiciary  has  often  at  critical  junctures  of 
our  history  been  an  unpopular  branch  of  our  govern- 
ment, and  that  it  has  not  infrequently  been  made  the 
object  of  political  attacks  no  less  determined  than  the 
present  one. 

The  decision  of  the  Supreme  Court,  in  1793,  in 
Chisolm  v.  Georgia,  holding  that  a  state  could  be 
sued  by  a  citizen  of  another  state,  caused  a  ' '  shock  of 
surprise' '  and  widespread  opposition  throughout  the 
country,  which  was  intensified  by  the  supposed  ar- 
rogance of  the  federal  judiciary,  springing  from  their 
possession  of  powers  under  the  Constitution  which 
represented  within  certain  spheres  of  government  a 
sovereignty  superior  to  the  states.  The  ideas  voiced 
by  Mr.  Jefferson,  based  upon  the  expressions  of  the 
leaders  of  the  French  Revolution  as  to  abstract  justice, 


RECALL  OF  DECISIONS  223 

political  freedom  and  the  equality  of  men,  were  remark- 
ably like  those  expressed  by  certain  political  leaders  of 
to-day,  when  they  attempt  for  party  purposes  to  give 
a  definition  to  modern  progressivism,  and  they  cre- 
ated a  widespread  unrest,  particularly  in  relation  to 
the  supposed  aggressions  of  the  courts.  On  January 
2,  1801,  in  declining  the  offer  of  President  Adams  to 
appoint  him  again  to  the  office  of  Chief  Justice  of  the 
United  States,  Mr.  Jay  wrote  to  President  Adams : 

"I  left  the  bench  perfectly  convinced  that  under  a  system 
so  defective  it  (the  judicial  department)  would  not  obtain 
the  energy,  weight  and  dignity  which  are  essential  to  its 
affording  due  support  to  the  national  government;  nor  ac- 
quire the  public  confidence  and  respect  which,  as  the  last 
resort  of  the  justice  of  the  nation,  it  should  possess.  Hence  I 
am  induced  to  doubt  both  the  propriety  and  the  expediency 
of  my  returning  to  the  bench  under  the  present  system; 
especially  as  it  would  give  some  countenance  to  the  neglect 
and  indifference  with  which  the  opinions  and  remonstrances 
of  the  judges,  on  this  important  subject,  have  been  treated." 

For  many  years  a  majority  of  the  people  of  the 
country,  represented  by  the  Republican  party,  refused 
to  accept  the  decision  in  Marbury  v.  Madison  as  a  rule 
of  political  action.  Mr.  Jefferson  in  1819  referred  to 
the  movement  which  resulted  in  his  election  as  "the 
Revolution  of  1800,"  accomplished  by  the  suffrage  of 
the  people,  and  complained  that  while  the  nation  had 
thus  "declared  its  will  by  dismissing  functionaries  of 
one  principle  and  holding  those  of  another  in  the  two 
branches,  executive  and  legislative  .  .  .  the  Constitu- 
tion had  deprived  them  of  their  control"  over  the 
judiciary  department.  He  referred  to  the  power 
claimed  for  the  judges  to  decide  constitutional  ques- 
tions as  "a  very  dangerous  doctrine  indeed,  and  one 


224  PAPERS  AND  ADDRESSES 

which  would  place  us  under  the  despotism  of  an  oli- 
garchy." In  1821  he  said  "The  judiciary  branch  is  the 
instrument  which,  working  like  gravity  without  inter- 
mission, is  to  press  us  at  last  into  one  consolidated 
mass. ' '  And  again, '  *  It  is  a  misnomer  to  call  a  govern- 
ment republican  in  which  a  branch,  the  Supreme  Court, 
is  independent  of  the  nation.  .  .  ."  He  denounced  in 
no  less  emphatic  terms  the  manner  in  which  Chief  Jus- 
tice Marshall  presided  at  the  trial  of  Aaron  Burr  and 
said  that  it  would  ' '  produce  an  amendment  to  the  Con- 
stitution which,  keeping  the  judges  independent  of  the 
executive,  will  not  leave  them  so  of  the  nation. ' ' 

The  decision  in  the  case  of  the  United  States  v.  Mc- 
Culloch  excited  no  less  opposition  than  that  in  Marbury 
v.  Madison.  In  Kentucky  the  feeling  ran  so  high  that 
an  attempt  almost  succeeded  to  remove  from  office  a 
judge  of  the  State  Supreme  Court  because  he  had,  on 
the  authority  of  the  decision  in  the  McCulloch  case, 
declared  a  state  replevin  act  unconstitutional.  For 
similar  reasons  the  legislature  of  Kentucky  created  a 
second  State  Supreme  Court;  and  it  is  not  too  much 
to  say  that  the  whole  judicial  situation  came  perilously 
near  creating  a  civil  war  in  Kentucky.  The  manner 
in  which  President  Jackson,  having  an  overwhelming 
public  sentiment  behind  him,  succeeded  in  rendering 
ineffective  the  judgment  in  the  McCulloch  case  is  too 
well  known  to  need  extended  reference.  In  vetoing  the 
bill  for  the  extension  of  the  charter  of  the  bank,  this 
most  popular  of  Presidents  said  that  "the  opinion  of 
the  judges  has  no  more  authority  over  Congress  than 
the  opinion  of  Congress  has  over  the  judges,  and  on 
that  point  the  President  is  independent  of  both." 
Later  came  the  Bred  Scott  decision  which  offended  a 
great  portion  of  the  American  people,  and  the  Legal 
Tender  cases,  which  excited  widespread  criticism ;  and 


RECALL  OF  DECISIONS  225 

in  later  years  we  all  remember  the  intense  feeling 
aroused  by  the  decisions  in  the  Income  Tax  cases,  and 
in  the  Debs  case,  which  involved  the  power  of  a  court 
to  enforce  its  own  decrees  by  punishing  recusant  par- 
ties for  contempt,  and  by  the  exercise  of  the  power 
to  issue  writs  of  injunction  in  labor  disputes. 

These  are  a  few  instances,  of  which  there  are  many 
similar  ones  in  the  judicial  history  of  our  country, 
which  serve  to  illustrate  how  at  certain  crises  decisions 
of  the  courts  have  aroused  a  feeling  of  antagonism 
which  has  been  often  more  widespread,  more  intense, 
and  more  insistent,  than  that  which  now  demands  the 
recall  of  decisions;  and  it  seems  fairly  reasonable  to 
predict  that  if  the  principle  of  the  recall  should  now 
be  conceded,  even  in  a  limited  form,  every  new  political, 
industrial,  economic  or  social  question  agitating  the 
people  in  the  future,  would  be  the  occasion  for  new 
applications  of  the  principle  until  finally  we  should 
have  the  courts  the  mere  timorous  conduits  of  what 
they  might  guess  to  be  the  opinion  of  the  majority  of 
the  electorate. 

It  is  not  probable  that  our  courts  will  ever,  for  long 
periods,  be  free  from  criticism.  Whenever  the  people 
seek  to  eradicate  abuses  in  the  administration  of  the 
government  or  when  they  aspire  to  elevate  their  social 
or  industrial  or  political  condition,  they  become  impa- 
tient of  any  restraint  imposed  upon  their  zeal  by  the 
Constitution;  and  it  is  upon  the  courts,  whose  duty  it 
is  to  impose  the  restraint,  that  their  discontent  is 
naturally  visited.  The  demand  for  the  recall  of  de- 
cisions is  the  result  of  impatience  of  this  kind  because 
the  courts  have  not  found  some  way  to  overcome  the 
constitutional  obstacles  to  securing  a  complete  and  im- 
mediate readjustment  by  legislation  of  social  and  in- 
dustrial relations,  which  it  is  thought  will  correct  some 


226  PAPERS  AND  ADDRESSES 

intolerable  conditions  which  have  arisen  in  the  rapid 
development  of  American  civilization  in  the  last  two 
decades.  The  recall  was  at  first  advocated  as  a  means 
of  reversing  judgments  rendered  by  judges  who  were 
"steeped  in  some  outworn  political  or  social  philosophy 
and  totally  misapprehend  their  relations  to  the  people 
and  to  the  public  needs."  x  It  was  to  be  used  in  rate 
cases  and  trust  cases,  because  these  are  problems  "in 
administrative  statesmanship,"  and  also  as  a  means 
of  authoritatively  reconciling  "conflicting  decisions  of 
the  courts,"  such,  for  instance,  as  the  decisions  in  the 
Income  Tax  cases.  Although  it  was  at  first  stated  that 
it  was  not  intended  to  apply  the  recall  to  "anything 
in  connection  with  the  Supreme  Court  of  the  United 
States  or  with  the  Federal  Constitution,"2  and  the 
arguments  in  its  support  related  principally  to  state 
court  decisions,  the  author  of  the  doctrine  now  advo- 
cates, without  qualification,  an  amendment  to  the  Fed- 
eral Constitution,  proposed  by  Senator  Bristow,  under 
which  a  decision  of  the  Federal  Supreme  Court,  hold- 
ing an  act  of  Congress  unconstitutional,  may  be  re- 
called at  a  regular  Congressional  election  by  a  majority 
vote  "in  a  majority  of  Congressional  districts,  and  also 
in  a  majority  of  the  states." 

Many  of  the  arguments  in  favor  of  the  recall  of 
decisions  have  been  partisan  and  indiscriminating,  and 
have  represented  an  inarticulated  agitation  against 
the  courts,  largely  based  upon  defects  in  the  adminis- 
tration of  justice  from  which  undue  delay,  excessive 
expense  and  vexatious  technicalities  have  resulted. 
We  all  agree  that  these  can  and  ought  to  be  corrected, 
but  the  recall  would  be  neither  an  appropriate  nor  an 
effective  remedy  for  their  correction.     The  serious  and 

i  Editorial   in   The  Outlook  on  "Judges  and  Progress,"  by  Ex-Presi- 
dent Roosevelt. 

2  Mr.  Roosevelt's  Carnegie  Hall  address. 


RECALL  OF  DECISIONS  227 

responsible  arguments  for  the  recall  of  decisions,  how- 
ever, have  been  based  almost  exclusively  upon  decisions 
of  state  courts,  and  principally  those  of  the  New  York 
Court  of  Appeals,  in  a  class  of  cases  in  which  certain 
legislative  acts  designed  to  promote  so-called  social  or 
industrial  justice  have  been  declared  not  to  constitute  a 
proper  exercise  of  the  police  power,  but  to  be  a  viola- 
tion of  the  state  or  Federal  Constitution,  because  they 
would  deprive  persons  of  liberty  or  property  without 
due  process  of  law.  The  advocates  of  the  doctrine  are, 
however,  pushed,  as  Mr.  Roosevelt  and  Senator  Bristow 
have  been,  to  favor  the  doctrine  as  a  means  of  securing 
the  review  by  popular  vote  of  all  decisions  of  both  state 
and  federal  courts  upon  constitutional  questions. 
And  if  the  principle  of  the  recall  is  once  conceded,  there 
is  no  reason,  either  theoretically  or  practically,  why  it 
should  not  be  extended  to  all  judicial  questions  where 
the  social,  industrial  or  political  interests  of  the  people 
are  involved. 

Mr.  Roosevelt's  remarkably  able  arguments  on  the 
recall  have  been  elaborated  in  a  book  entitled  "Major- 
ity Rule  and  the  Judiciary,"  by  Mr.  William  L.  Ran- 
som, to  which,  in  July  last,  Mr.  Roosevelt  wrote  a  com- 
mendatory introduction.  Professor  William  Draper 
Lewis,  Dean  of  the  Law  School  of  the  University  of 
Pennsylvania,  has  also  given  the  weight  of  his  name 
and  his  position  to  the  new  doctrine.  All  of  these  gen- 
tlemen have  treated  the  subject  philosophically;  and 
their  major  premise  is  based  upon  a  conception  of  the 
scope  and  meaning  of  the  police  power  which  they  as- 
sume to  be  justified  by  a  succinct  reference  to  that 
power  by  Mr.  Justice  Holmes  in  the  Oklahoma  Bank 
case.1  But  they  have  all  failed  to  observe  that 
Justice  Holmes's  allusion  to  the   subject  is  didactic 

i  Nobel  State  Bank  v.  Haskell,  219  U.  S.,  104-111. 


228  PAPERS  AND  ADDRESSES 

rather  than  analytic,  and  that  he  only  mentions  in  a 
general  way  certain  characteristics  of  the  police  power, 
without  attempting  to  give  a  definition  to  be  generally 
applied.  In  their  quotation  from  his  opinion,  they 
have  always  omitted,  as  immaterial  to  the  discussion, 
certain  parts  which  seem  to  me  to  be  highly  important, 
if  his  brief  reference  to  the  power  is  to  be  regarded  as 
a  definition.  In  the  following  extract  from  the  opinion, 
these  omitted  portions  are  italicized: 

"It  may  be  said  in  a  general  way  that  the  police  power 
extends  to  all  the  great  public  needs.  ...  It  may  be  put 
forth  in  aid  of  what  is  sanctioned  by  usage  or  held  by  the 
prevailing  morality  or  strong  and  preponderant  opinion  to 
be  greatly  and  immediately  necessary  to  the  public  welfare. 
.  .  .  With  regard  to  the  police  power,  as  elsewhere  in  the  law, 
lines  are  pricked  out  by  the  gradual  approach  and  contact  of 
decisions  on  the  opposing  sides." 

It  is  a  fundamental  error  to  suppose  that  the  ' '  strong 
and  preponderant  opinion,"  referred  to  by  Justice 
Holmes,  would  be  one  expressed  in  relation  to  a  par- 
ticular case  by  a  majority  of  the  electorate.  "  Strong 
and  preponderant  opinion"  which  determines  the 
necessity  for  the  assertion  of  the  police  power,  is  based 
upon  usage,  prevailing  standards  of  morality  and  ex- 
pediency, and  becomes  by  gradual  process  fixed  in  the 
community  with  such  a  degree  of  permanency  that  it  is 
not  dislodged  except  by  a  slow  process,  and  in  the  de- 
velopment of  national  character  and  the  social,  indus- 
trial or  political  needs  of  the  entire  people.  Such 
"strong  and  preponderant  opinion"  could  not  be  as- 
certained to  exist  by  the  vote  of  a  majority  of  the 
electorate  composed  of  25  per  cent,  of  the  entire  popula- 
tion ;  that  is,  by  one-eighth  of  the  entire  people.  It  is 
rather  an  opinion  concerning  existing  conditions  in  our 


RECALL  OF  DECISIONS  229 

social,  industrial  and  political  life  which,  in  most  cases, 
is,  without  such  a  vote,  readily  recognizable;  and 
where  in  border  cases  it  is  not  so  manifest,  the  rule 
for  the  application  of  the  police  power  must  be,  as 
Justice  Holmes  says,  "pricked  out  by  the  gradual  ap- 
proach and  contact  of  decisions  on  the  opposing  sides." 
It  is,  of  course,  because  in  some  of  the  border  cases 
it  is  supposed  that  some  of  the  courts  have  "lagged 
behind,"  that  the  recall  of  decisions  is  suggested  as  a 
means  of  accelerating  their  philosophical  reflections. 
If  some  courts  (it  is  not  charged  that  there  are  many) 
have  thus  failed  to  meet  the  expectations  of  advanced 
thought  upon  the  subject,  they  should  not  be  con- 
demned wholesale,  for  they  are  but  human  agencies 
from  which  perfection  is  not  to  be  expected;  and 
it  must  not  be  forgotten  that  from  the  same  imperfec- 
tion, if  the  recall  were  adopted,  the  danger  would  be 
that  the  courts,  practically  freed  from  the  restraint  of 
conservatism,  would  generally  "prick  out"  the  appli- 
cation of  the  police  power  on  the  wrong  side  of  the 
border.  It  all  comes  to  this :  Until  there  pervades  the 
community,  not  only  a  strong  and  a  preponderant,  but 
also  a  fundamental  and  a  permanent,  opinion  concern- 
ing the  application  of  the  police  power  to  a  particular 
question,  the  whole  matter  is  essentially  one  for  judi- 
cial interpretation  and  not  one  which  justifies  the  inter- 
ruption of  the  reign  of  constitutional  law  by  reference 
in  particular  cases  to  the  temporary  majority  of  the 
electorate,  aroused,  and  perhaps  misled,  by  an  excess  of 
partisan  zeal. 

There  was  significance  in  Mr.  Justice  Holmes's  quali- 
fication that  he  was  describing  the  police  power  only 
in  "a  general  way,"  for  the  courts  have  always  re- 
frained from  attempting  precisely  to  define  the  power, 
lest  a  generalization  should  be  inadequate  to  cover  con- 


230  PAPERS  AND  ADDRESSES 

crete  cases  arising  in  the  future.  The  purposes  of  the 
police  power  are  referred  to,  but  its  existence  in  a 
particular  case  is  left  by  the  courts,  as  in  cases  of  fraud, 
to  be  determined  when  occasion  arises.  It  is  easier  to 
say  what  it  is  not,  than  what  it  is;  but  a  temporary 
majority  of  the  electorate  would  be  a  very  uncertain 
guide  in  determining  whether  an  occasion  required  its 
exercise.  In  the  Jacobs  case,1  Judge  Earl  said:  "The 
limit  of  the  power  cannot  be  accurately  denned,  and  the 
courts  have  not  been  able  or  willing  definitely  to  cir- 
cumscribe it. ' '  Chief  Justice  Shaw,  in  Commonwealth 
v.  Alger,2  saidi  "It  is  much  easier  to  perceive  and 
realize  the  existence  and  sources  of  the  power,  than 
to  mark  its  limitations,  or  prescribe  limits  to  its 
exercise." 

A  point  which  has  generally  been  overlooked  by 
those  favoring  the  recall,  is  that  at  the  outset  a  court 
is  called  upon  to  decide  whether  a  law  sought  to  be 
justified  as  an  exercise  of  the  police  power,  is  in  fact 
a  health  law  or  a  general  welfare  or  other  similar  law, 
or  whether  it  is  not,  under  the  guise  of  such  a  law, 
passed  with  some  ulterior  and  sinister  purpose,  as,  for 
instance,  improperly  to  serve  some  corporate  interests, 
or  to  afford  a  basis  for  lobbyists  or  others  to  levy 
blackmail  on  such  interests.  It  was  a  question  of  this 
kind  which  was  determinative  of  three  of  the  four  cases 
in  the  New  York  Court  of  Appeals,  which  are  discussed 
below,  and  which  have  been  repeatedly  asserted  to  be 
conspicuous  instances  in  which  the  courts  have  failed 
to  respond  to  the  prevailing  sentiment  of  the  com- 
munity. 

Both  questions  which  thus  arise  in  relation  to  the 
police  power  are  essentially  juridical.     They  involve  a 

i  98  New  York  99-110. 
2  7  Cushing  53-84. 


EECALL  OF  DECISIONS  231 

philosophical  analysis  of  each  case  as  it  arises,  lest, 
under  the  guise  of  a  power  inherent  to  sovereignty 
and  rising  superior  to  constitutions  and  laws,  the  in- 
dividual may  be  deprived  of  his  property,  his  liberty 
or  his  life,  without  due  process,  although  in  form,  of 
law.  If,  as  a  result,  a  social  or  industrial  reform  be 
temporarily  retarded,  until  its  necessity  has  been 
calmly  considered  and  the  machinery  for  its  accom- 
plishment has  been  deliberately  worked  out,  not  by 
votes  in  special  cases  referred  for  decision  to  the 
people,  but  under  fundamental  constitutional  law  as 
finally  interpreted  by  the  courts,  influenced,  as  they  in- 
evitably will  be,  by  public  opinion,  that  is  far  better 
than  that  a  single  citizen  should  be  deprived  of  his  life, 
his  liberty  or  of  his  property. 

The  discussion  of  this  phase  of  the  recall  doctrine 
cannot  be  made  complete  without  a  brief  reference  to 
the  four  New  York  decisions  already  referred  to. 

In  the  Tenement  House  case,1  one  Jacobs  was  prose- 
cuted criminally  for  carrying  on  the  trade  of  cigar- 
making  in  his  own  home,  in  violation  of  the  provisions 
of  an  act  of  the  legislature.  It  was  sought  to  sustain 
this  act  as  one  to  promote  the  public  health.  It  ap- 
peared as  a  matter  of  fact,  however,  that  it  was  not  a 
health  measure  at  all,  but  that  it  had  been  passed  by 
the  procurement  of  the  owners  of  large  tobacco  fac- 
tories in  the  city  of  New  York  and  Brooklyn,  for  the 
purpose  of  crushing  out  the  competition  of  persons 
working  in  tobacco  manufacture  in  their  own  homes. 
The  Board  of  Health  of  the  city  of  New  York  officially 
declared  that  the  act  in  question  was  not  "a  sanitary 
measure,"  and  further,  "that  the  health  of  the  tene- 
ment-house population  is  not  jeopardized  by  the  manu- 
facture of  cigars  in  those  houses."     Thus,  the  main 

i  The  Matter  of  Jacobs,  98  New  York  98. 


232  PAPERS  AND  ADDRESSES 

question  involved  in  this  case  was  whether  the  act  by 
which  it  was  attempted  to  imprison  Jacobs  was  a  meas- 
ure improperly  procured  for  an  ulterior  purpose  by 
the  large  vested  interests.  The  court  held,  and  was 
sustained  by  the  Supreme  Court  of  the  United  States 
in  the  holding,  that  the  measure  was  not  a  health 
measure  at  all  and  that  there  was,  therefore,  no  occa- 
sion, in  the  general  interest,  for  suspending  the  safe- 
guards of  the  Constitution  by  depriving  Jacobs  of  his 
liberty.  Judge  Earl,  one  of  our  greatest  judges, 
speaking  for  the  court,  said : 

"It  is  plain  that  this  is  not  a  health  law,  and  that  it  has 
no  relation  whatever  to  the  public  health.  Under  the  guise 
of  promoting  the  public  health  the  legislature  might  as  well 
have  banished  cigarmaking  from  all  the  cities  of  the  state, 
or  confined  it  to  a  single  city  or  town,  or  have  placed  under 
a  similar  ban  the  trade  of  a  baker,  of  a  tailor,  or  a  shoemaker, 
of  a  woodcarver,  or  of  any  other  of  the  innocuous  trades  car- 
ried on  by  artisans  in  their  homes.  .  .  . 

"When  a  health  law  is  challenged  in  the  courts  as  uncon- 
stitutional on  the  ground  that  it  arbitrarily  interferes  with 
personal  liberty  and  private  property  without  due  process  of 
law,  the  courts  must  be  able  to  see  that  it  has  at  least  in  fact 
some  relation  to  the  public  health,  that  the  public  health  is 
the  end  actually  aimed  at,  and  that  it  is  appropriate  and 
adapted  to  that  end.  This  we  have  not  been  able  to  see  in 
this  law,  and  we  must,  therefore,  pronounce  it  unconstitu- 
tional and  void." 

If  an  effort  had  been  made  to  recall  this  decision,  it 
is  not  difficult  to  see  how  the  matter  would  have  been 
presented  to  the  people,  for  to  the  chief  advocate  of  the 
recall  of  decisions  the  principal  question  in  the  case 
was  whether  a  tobacco  worker  should  or  should  not  be 
permitted  to  pursue  his  vocation  in  "one  foul  room  in 
which  two  large  families,  one  with  a  boarder,  live  and 


RECALL  OF  DECISIONS  233 

work  day  and  night,  the  tobacco  they  manufacture  be- 
ing surrounded  with  every  form  of  filth." 

In  the  Knisley  case,1  there  was  no  question  of  consti- 
tutional law  at  all.  The  court  merely  construed  the 
Employers'  Liability  Act,  and  determined  that  under 
its  provisions  an  employee  injured  in  a  machine  which 
had  unguarded  cogwheels  could  not  recover  when  the 
danger  was  visible  and  plainly  known  to  her.  It  did 
not  hold  that  the  act  was  unconstitutional,  but  merely 
followed  the  decisions  of  the  courts  of  Massachusetts 
and  England,  interpreting  similar  statutes.  The  stat- 
ute could,  of  course,  have  been  immediately  changed  by 
the  legislature.  The  case  neither  illustrates  nor  sup- 
ports the  argument  for  a  recall  of  decisions. 

In  the  Williams  case,2  the  court  declared  unconsti- 
tutional a  statute  which  prevented  a  woman  from  work- 
ing at  any  trade  in  a  factory  after  nine  o'clock  at  night. 
The  decision  was  based  upon  the  fact  that  there  was 
nothing  to  show  that  mere  working  at  night  had  any 
relation  to  the  healthfulness  of  the  employment.  The 
court  held  that  the  statute  was  an  undue  interference 
with  an  adult  woman  who,  with  the  other  women  in  the 
same  employment,  insisted  upon  her  constitutional 
right  to  earn  her  living  by  skilled  labor  in  the  book- 
binding business,  even  though  the  requirements  of  the 
business  necessitated  the  doing  of  the  work  at  night 
three  or  four  nights  during  the  week.  If  she  had  not 
been  permitted  to  work,  she  would  have  been  driven 
out  of  her  trade,  and  the  work  would  have  had  to  be 
done  by  men,  because  it  was  a  matter  of  indifference  to 
the  employers  which  sex  was  employed. 

The  only  case  affording  even  a  colorable  ground  for 
the  claim  that  the  courts  of  this  state  have  "lagged 

i  148  New  York  372. 
2  189  New  York  131. 


234  PAPERS  AND  ADDRESSES 

behind"  the  enlightened  thought  of  the  day  is  the  Ives 
case,1  in  which  it  was  decided  by  the  Court  of  Appeals 
that  the  Workmen's  Compensation  Act  was  uncon- 
stitutional. That  act  provided  that  an  employer  in 
certain  occupations  regarded  as  dangerous  should  pay 
damages  to  an  employee  who  was  injured,  even  if  the 
employer  had  not  been  guilty  of  any  negligence  or 
failed  in  any  way  to  discharge  his  entire  duty  to  the 
employee.  The  court  held  that  the  legislature  had  the 
power  to  abolish  the  fellow-servant  rule,  the  rule  as  to 
risks  assumed  in  a  dangerous  occupation,  and  the  rule 
as  to  contributory  negligence;  but  that,  in  imposing  a 
liability  upon  an  employer,  when  he  was  entirely  free 
from  fault,  property  was  taken  from  him  without  due 
process  of  law.  The  New  York  act  went  further  than 
any  other  similar  act  passed  in  this  country  except, 
perhaps,  that  passed  by  the  State  of  Washington,  and 
sought  by  a  single  drastic  provision  to  abolish  every 
rule  of  law  relating  to  the  subject  which  had  existed  for 
hundreds  of  years.  While  there  may  be  a  doubt  as  to 
whether  the  decision  in  the  Ives  case  was  clearly  right, 
there  certainly  was  some  reasonable  ground  for  saying 
that  to  mulct  an  employer  for  damages  for  injuries 
which  he  has  not  directly  or  indirectly  caused  is  not 
consonant  with  abstract  notions  of  justice,  with  rules 
of  law,  or  with  the  Golden  Rule.  The  court  in  its 
opinion  did  not  give  the  slightest  indication  that  its 
conclusion  was  influenced  by  any  "outworn  philos- 
ophy" or  by  anything  but  a  desire  to  cooperate,  so  far 
as  the  Constitution  would  permit,  in  the  humane  and 
disinterested  efforts  of  the  citizens  who  procured  the 
passage  of  the  Workmen's  Compensation  Act. 

There  has,  therefore,  been  no  real  grievance  in  this 
state,  based  upon  these  four  decisions.     But  even  if 

i  201  New  York  271. 


EECALL  OF  DECISIONS  235 

there  had  been,  there  is  no  sufficient  reason  why  it  may 
not  be  dealt  with  by  an  amendment  of  the  Constitution 
after  mature  deliberation,  free  from  the  turmoil  of 
political  contention.  If  there  is  a  fault,  it  is  funda- 
mental; and  it  is  just  such  matters  that  should  be 
regulated  by  constitutional  provision.  It  is  objected 
that  the  process  for  the  amendment  of  the  Constitution 
is  slow.  That  is  indeed  fortunate.  Never  before  was 
deliberation  more  necessary;  for  the  proper  adjust- 
ment of  our  governmental  machinery  to  meet  the  needs 
of  the  social  and  industrial  development  is  a  problem 
of  unusual  difficulty.  But  to  decide  by  a  bare  majority 
of  the  electorate  individual  cases  where  the  assertion 
of  the  police  power  conflicts  with  the  claim  of  the  in- 
dividual that  his  liberty  or  his  property  shall  not  be 
put  in  jeopardy,  would  create  the  utmost  confusion  in 
our  system  of  jurisprudence.  The  voters  would  pay 
little  attention  to  anything  except  the  question  whether, 
in  the  particular  case  referred  to  them,  they  would 
prefer  for  some  reason,  however  prejudiced  or  partisan 
or  whimsical  it  might  be,  that  the  decision  should  not 
stand.  Such  a  preference  would  inevitably  be  influ- 
enced in  a  short  political  campaign  by  such  ad  captan- 
dum  arguments  as  partisan  zeal  might  suggest;  and 
the  vision  of  a  most  enlightened  elector  as  to  the  ulti- 
mate effect  of  the  general  adoption  of  the  recall  as  a 
principle  of  government,  might  well  be  obscured  by 
circumstances  in  a  particular  case  appealing  to  his 
sympathy  or  to  his  prejudices.  It  would  be  too  much 
to  expect  that  the  people  could,  in  the  short  time  avail- 
able in  each  recall  campaign,  be  adequately  informed 
as  to  the  facts  in  the  record  before  the  court,  showing 
that  the  statute  under  consideration  was  not  in  good 
faith  a  health  measure  or  a  welfare  measure,  or  as  to 
the  broader  philosophical  considerations  which  had  led 


236  PAPERS  AND  ADDRESSES 

the  court  to  decide  that  the  act  under  consideration  was 
not  so  necessary  to  the  social  and  industrial  develop- 
ment of  the  people  as  to  justify  the  setting  aside  of  the 
constitutional  guarantees  of  life,  liberty  or  property. 

It  is  said  that  no  one  can  draw  constitutional  amend- 
ments empowering  the  courts  adequately  to  deal  with 
cases  of  social  and  industrial  injustice,  which  will  not 
also  be  so  comprehensive  as  to  include  cases  to  which 
they  are  not  intended  to  apply.  Professor  Lewis 
argues,  for  instance,  that  a  general  amendment  to  sanc- 
tion a  particular  compensation  act  or  a  particular  act 
regulating  the  hours  of  labor,  would  permit  the  enact- 
ment of  any  compensation  act  or  any  act  regulating  the 
hours  of  labor;  and  that  the  courts  would  be  com- 
pelled to  declare  the  act  constitutional,  however  un- 
wise or  radical  its  provisions.  We  must,  indeed,  admit 
that  there  is  a  real  difficulty  in  framing  a  constitutional 
definition  of  the  police  power  which  could  be  intelli- 
gently applied  to  any  future  situation;  but  to  argue 
that,  if  it  was  attempted,  the  legislature  would  be  too 
radical  in  the  exercise  of  the  power  thus  denned  and, 
therefore,  that  it  is  safer  to  submit  special  cases  to  the 
people  themselves  on  short  notice,  is  to  ignore  the  fact 
that  it  would  never  be  difficult  to  make  the  legislature 
promptly  respond  to  the  demands  of  the  people  in  the 
improbable  event  that  it  showed  tendencies  which  were 
too  radical.  It  is,  of  course,  true  that  the  legislature, 
knowing  that  the  constitutionality  of  its  acts  is  to  be 
examined  by  the  courts  in  a  preliminary  and  incon- 
clusive manner  only,  would  go  as  far  in  passing  laws  as 
it  was  supposed  that  a  majority  of  the  electorate  would 
approve ;  but  it  is  absurd  to  say  that  they  would  habit- 
ually go  further.  Whether  the  people  or  the  legisla- 
ture are  made  the  final  arbiters  as  to  the  necessity  for 
the  exercise  of  the  police  power  in  given  cases,  or  in  re- 


RECALL  OF  DECISIONS  237 

viewing  a  decision  of  the  court  upon  any  other  subject, 
there  would  be  no  practical  difference  in  the  results. 
In  either  case  it  would  inevitably  happen  that  those 
restraints  upon  the  power  of  the  people  and  the  legis- 
lature, which  the  experience  of  history  has  taught  to 
be  necessary  to  secure  stability  in  a  popular  or  repre- 
sentative government,  would  be  utterly  destroyed,  and 
our  civil  liberties  would  speedily  disappear  under  the 
malign  influence  of  "the  greatest  of  all  despotisms 
...  a  government  of  special  instances." 

The  admitted  difficulty  of  dealing  with  this  subject 
by  constitutional  amendment  gives  especial  cogency  to 
the  argument  already  advanced  that  the  peculiarly 
changeable  and  elastic  nature  of  the  so-called  police 
power  makes  its  extent  and  character  in  particular 
cases  essentially  a  juridical  question,  wholly  inappro- 
priate to  be  submitted  for  solution  under  any  possible 
constitutional  provision  either  to  a  representative  as- 
sembly or  to  the  possible  tyranny  of  a  bare  majority. 
It  is  a  question  upon  which  especially  the  law,  and  not 
the  temporary  opinion  of  the  electorate,  should  be 
supreme,  lest,  by  gradual  process,  the  wise  restraints 
of  our  Constitution  being  removed,  we  should  develop 
into  a  pure  democracy,  and  then,  perhaps,  by  the  next 
step  into  State  Socialism.  In  such  a  situation,  these 
words  of  Aristotle  seem  prophetic: 

"...  Another  circumstance  which  leads  to  the  last  form 
of  democracy  is  that  all  who  have  any  complaints  against  the 
officers  of  state,  argue  that  the  judicial  power  ought  to  be 
vested  in  the  commons,  and  as  the  commons  gladly  entertain 
the  indictment,  the  result  is  that  the  authority  of  all  the  offi- 
cers of  state  is  seriously  impaired.  ...  It  would  seem  a  just 
criticism  to  assert  that  this  kind  of  democracy  is  not  a.  con- 
stitutional government  at  all,  as  constitutional  government 
is  impossible  without  the  supremacy  of  laws." 


238  PAPERS  AND  ADDRESSES 

Let  us  consider  for  a  moment  what  a  judge  would 
be  confronted  with  in  considering  the  constitutionality 
of  a  statute  claimed  to  be  valid  as  an  exercise  of  the 
police  power.  Obviously  he  could  not  confine  himself 
to  the  record  in  the  case  before  him.  If  the  statute 
should  be  a  health  law  and  the  judge  had  not  had  occa- 
sion before  to  give  to  the  question  any  definite  consid- 
eration, where  would  he  go  for  information?  It  would 
be  of  little  use  to  go  to  the  scientists  or  to  the  em- 
ployees, or  to  the  public-health  authorities,  or  to  the 
vested  interests  which,  perhaps,  were  responsible  for 
the  legislation.  The  surest  authorities  to  consult 
would  be  the  political  leaders,  to  ascertain  how  the 
people  would  vote  at  an  election  to  recall  the  decision 
of  the  judge.  For  the  question  would  be,  not  even 
what  was  the  preponderant  opinion  of  the  entire  com- 
munity, but  rather,  in  the  particular  circumstances 
surrounding  the  case  and  in  view  of  the  prejudices 
which  would  be  likely  to  be  aroused  through  sympathy 
or  otherwise,  which  side  would  receive  the  votes  of  the 
larger  number  of  qualified  electors.  One  may  imagine 
the  perplexities  of  a  judge  sworn  to  administer  his 
office  according  to  law  and  the  immutable  principles  of 
justice,  who  finds  himself  compelled  to  leave  his  library 
and  consultation  room,  and  engage  in  the  hazardous 
occupation  of  political  prophecy.  And  if  the  case  be- 
fore the  court  involved  the  question  whether  the  public 
welfare  required  that  railroads  should  give  transfers, 
or  whether  gas  companies  could  charge  more  than  a 
rate  fixed  by  statute,  or  railroad  companies  more  than 
two  cents  a  mile,  or  whether,  in  a  case  for  the  con- 
demnation by  a  railroad  of  land,  a  necessity  for  the 
acquisition  of  the  land  existed,  or  any  similar  question 
where  on  the  one  side  were  the  vested  interests  and 


RECALL  OF  DECISIONS  239 

on  the  other  the  material  interests  of  large  numbers  of 
people,  his  dilemma  might  be  even  more  serious,  for 
he  might  find  that  a  conscientious  regard  for  his  oath 
to  administer  the  law  as  he  believed  it  to  be  would  lead 
him  to  decide  in  favor  of  the  corporate  interest,  while, 
with  no  great  skill  as  a  political  prophet,  he  could  pre- 
dict that  his  decision  would  be  reversed  by  a  referen- 
dum to  the  people. 

Whatever  the  question  involved,  the  vote  of  the  peo- 
ple would  be  based  upon  no  clear  or  enduring  principle 
which  could  be  formulated,  nor  could  the  reasons  of  the 
voters  be  ascertained  with  any  degree  of  certainty,  for 
use  as  a  precedent  for  the  guidance  in  the  future  either 
of  constitutional  conventions  or  courts  or  legislatures, 
or  even  of  the  people  themselves.  Upon  a  subsequent 
referendum  upon  a  similar  question,  it  might  well  hap- 
pen, therefore,  that,  through  some  factitious  circum- 
stance, political,  social,  industrial  or  personal,  a  dif- 
ferent vote  might  be  cast;  and  as  a  result  of  repeated 
ref  erendums  we  would  soon  have  an  irreconcilable  con- 
flict of  popular  decisions,  without  the  possibility  of 
deducing  any  safe  or  certain  guide  for  future  action. 
Our  system  of  jurisprudence,  so  far  as  it  deals  with 
the  rights  of  property,  would  become  merely  a  mass  of 
special  instances  from  which  no  generalization  could 
safely  be  made,  while  the  judiciary  itself  would  no 
longer  find  it  worth  while  in  their  decisions  to  impose 
futile  constitutional  restraints.  The  courts  would  be- 
come an  adjunct  of  the  executive  and  the  legislative  de- 
partments of  the  government,  and  the  property  and  lib- 
erty of  each  individual,  and  every  right  and  privilege 
which  he  had  been  taught  to  regard  as  being  sacredly 
guaranteed  to  him  by  the  Constitution,  would  be  at 
the  hazard  of  the  tyrannical  power  of  a  majority  of 


240  PAPERS  AND  ADDRESSES 

the  electorate,  influenced  by  its  temporary  interest, 
prejudice  or  sympathy,  or  by  some  other  equally 
irrelevant  motive. 

The  judges  of  a  state  court  are  sworn  to  discharge 
their  duties  according  to  the  best  of  their  "  abilities 
and  understanding,  agreeably  to  the  Constitution  and 
laws  of  the  United  States."    Upon  a  recall  of  a  deci- 
sion of  state  judges,  they  might  find  themselves  con- 
fronted with  a  vote  of  the  people  of  their  state  finding 
that  their  interpretation  of  the  Federal  Constitution 
was  wrong,  although  they  had  been  compelled  to  follow 
a  decision  upon  the  subject  by  the  Supreme  Court  of 
the  United  States,  because  the  interpretation  by  that 
court  of  the  Federal   Constitution  is  made  by  that 
instrument  the  "supreme  law  of  the  land."    If,  upon 
another  hearing  after  a  recall  by  the  people  of  their 
state,  they  were  to  conform  their  judgment  to  wishes 
of  the  majority,  they  would  find  themselves  compelled 
to  pronounce  a  judgment  at  variance  with  an  inter- 
pretation of   the  Federal   Constitution  which,  under 
the  oath  just  referred  to,  they  were  bound  to  adopt. 
Until  the  whole  subject  could  be  passed  upon  by  a 
vote  of  the  people  of  the  nation,  there  would,  therefore, 
be  conflict  between  the  people  of  the  states  and  their 
courts,   between   the   state   courts   and   the   Supreme 
Court,  and  between  the  Supreme  Court  and  the  people 
of  the  United  States;  in  short,  there  would  be  chaos 
in  our  judicial  procedure  and  absolute  uncertainty  as 
to  the  law  by  which  the  rights  of  the  individual  citizen 
were  to  be  governed.     We  are  now  in  the  midst  of  a 
very  remarkable   social  and  industrial   development. 
This  has  already  presented  for  the  decision  of  the 
courts,  especially  the  federal  courts,  questions  of  far- 
reaching  importance;  and  on  the  horizon  appear  new 
questions    concerning   old-age    pensions,    government 


RECALL  OF  DECISIONS  241 

ownership  of  railroads  and  other  public  utilities,  the 
adjustment  of  the  relation  of  labor  organizations  to 
the  government  and  to  the  employer,  graded  inherit- 
ance taxes,  and  changes  in  the  taxing  system  generally. 
If  the  principle  of  direct  reference  to  the  people  of 
judicial  decisions  is  once  conceded,  it  is  to  this  kind  of 
questions  especially  that  it  will  be  applied;  and  in  the 
heat  of  political  contests  for  their  immediate  settle- 
ment, the  rights  of  the  individual  will  be  forgotten  and 
one  after  another  of  the  decisions  of  the  courts  uphold- 
ing the  constitutional  guarantees  of  liberty  and  prop- 
erty will  be  set  aside,  and  finally  the  entire  structure 
of  representative  republican  government  will  be  ruth- 
lessly swept  away  by  the  votes  of  bare  majorities  at 
successive  special  elections.  It  is  no  exaggeration  to 
say  that  the  proposition  puts  ''the  ax  to  the  root  of 
the  tree  of  well-ordered  freedom." 

There  is  no  pressing  necessity  for  the  adoption  of 
the  recall  of  decisions.  It  has  been  asserted,  as  I  have 
already  said,  that  the  proposition  has  nothing  to  do 
with  the  United  States  Supreme  Court,  and  is  only  an 
effort  "to  bring  laggard  state  courts  of  ultimate  ap- 
peal up  to  the  progressive  standards  set  by  the  nation 's 
great  court.  If  you  do  not  agree  with  those  standards 
your  quarrel  is  with  Chief  Justice  White  and  his  col- 
leagues, and  not  with  Colonel  Roosevelt  or  Dean 
Lewis."  1  We  have  seen  that,  after  the  election,  this 
limitation  of  the  recall  was  repudiated  by  the  leaders 
of  the  Progressive  Party,  and  that  although  nothing 
has  since  happened  to  suggest  a  doubt  that  the  Supreme 
Court  of  the  United  States  entertains  sufficiently  ad- 
vanced views  upon  the  burning  social  and  industrial 
questions  of  the  day,  they  propose  to  subject  that 
tribunal  also  to  the  ignominy  of  a  recall  of  its  de- 

i  "Majority  Rule  and  the  Judiciary,"  by  Ransom. 


242  PAPERS  AND  ADDRESSES 

cisions;  and,  under  Senator  Bristow's  amendment,  not 
only  is  this  to  be  in  matters  involving  the  exercise  of 
the  police  power  under  the  due-process-of-law  clause  of 
the  Constitution,  but  also  where  the  court  has  con- 
strued a  clause  of  the  Constitution  containing  an  ex- 
press and  unambiguous  prohibition  or  restraint.  And 
thus  a  law  held  by  the  courts  to  be  unconstitutional 
because  it  abridged  "the  freedom  of  speech  or  of  the 
press,"  or  related  to  the  "establishment  of  religion" 
could,  by  a  vote  of  a  bare  majority,  be  held  valid ;  and 
by  a  similar  vote  the  Constitution  and  laws  of  the 
United  States  could  be  declared  to  be  no  longer  the 
"supreme  law  of  the  land"  and  the  federal  courts  no 
longer  to  be  vested  with  "the  judicial  power  of  the 
United  States. ' '  The  guarantee  to  the  states  that  they 
should  always  have  "a  republican  form  of  govern- 
ment ' '  could  be  set  aside ;  and  indeed,  under  the  pro- 
posed amendment,  our  entire  form  of  government 
could  by  a  single  vote  in  a  single  year  and  under  the 
temporary  spell  of  some  extraordinary  leader,  inspired 
perhaps  by  good,  if  unwise,  but  more  likely  by  bad 
motives,  be  swept  away.  It  is  not  probable  that  the 
people  will  ever  adopt  the  extraordinary  amendment 
proposed  by  Senator  Bristow,  yet  that  it  could  be  pro- 
posed by  a  Senator  of  the  United  States  as  a  logical  ex- 
tension of  one  of  the  most  important  planks  in  the  plat- 
form of  a  political  party,  indicates  the  loose  thought 
and  adventurous  spirit  with  which  this  vital  subject  is 
being  dealt. 

If  the  Supreme  Court  has  up  to  the  present  time  dis- 
charged its  duty  in  interpreting  public  opinion  in  rela- 
tion to  matters  of  social  and  industrial  justice,  why 
should  such  a  radical  proposition  be  even  suggested,  to 
be  held  over  their  heads  in  terrorem?  It  would  be 
the  height  of  folly  to  apply  to  their  decisions  the  recall ; 


RECALL  OF  DECISIONS  243 

and  there  is  even  less  reason  for  applying  it  to  the 
state  courts  since  any  of  their  shortcomings  may  be 
readily  remedied  by  a  simple  amendment  to  the  Federal 
Judiciary  Act,  providing  that,  where  a  state  court  de- 
cides that  a  state  law  is  not  a  valid  exercise  of  the 
police  power  and  therefore  that  it  violates  the  due- 
process-of-law  provisions  of  the  Fourteenth  Amend- 
ment of  the  Federal  Constitution,  an  appeal  may  be 
taken  to  the  Supreme  Court.  Unless  it  be  assumed 
that  the  Supreme  Court  is  to  change  its  present  ad- 
vanced and  progressive  view  of  the  scope  of  police 
powers,  this  amendment  will  effectually  cure  the  evils 
complained  of  in  a  few  of  the  state  courts,  and  their 
"outworn  philosophy"  will  soon  disappear  without 
revolutionary  change  in  our  judicial  system,  and  by  a 
perfectly  normal  development  of  our  American  consti- 
tutional law.  There  seems  to  have  been  no  serious  at- 
tempt by  the  advocates  of  the  recall  to  explain  why 
such  an  amendment  to  the  judiciary  act  will  not  per- 
manently and  effectually  correct  any  mistake  of  the 
few  state  courts  which  have  offended  against  the  new 
political  philosophy.  They  have,  it  is  true,  attempted 
to  attract  conservative  support  by  asserting  that  the 
recall  of  decisions  is  an  antidote  to  what  they  claim  to 
be  the  more  radical  doctrine  of  the  recall  of  judges. 
But  while  the  recall  of  judges  is  vicious  in  principle  be- 
cause it  would,  if  frequently  resorted  to,  tend  to  deter- 
iorate the  character  and  destroy  the  independence  of 
the  judiciary,  yet  it  would  be  an  awkward  and  unsatis- 
factory expedient  and  would  probably  after  a  few  ex- 
periments fall  into  disuse;  particularly  since  it  has 
been  shown  in  the  Archbald  case  how  effective  an  im- 
peachment can  be  made  for  the  punishment  of  judicial 
improprieties.  But  even  if  the  recall  of  judges  were 
frequently  availed  of  it  would  be  far  less  injurious  in 


244  PAPERS  AND  ADDRESSES 

its  results  than  the  recall  of  decisions.  For  the  latter 
device  would  not  only  have  a  demoralizing  effect  upon 
the  character,  efficiency  and  independence  of  the  judic- 
iary equal  to  that  produced  by  the  recall  of  judges, 
but  it  would,  particularly  in  its  post-election  form,  be 
infinitely  more  dangerous  to  our  institutions,  for  the 
reason,  already  referred  to,  that  it  would  afford  a 
means  by  which  the  electorate  could,  in  the  heat  of 
successive  contests  and  by  a  bare  majority,  sweep  away 
one  after  another  of  the  restraints  of  the  Constitution 
which  had  proved  temporarily  inconvenient,  until  fin- 
ally the  whole  governmental  structure  should  be  top- 
pled over.  The  insidious  danger  in  this  form  of  re- 
call lies  in  the  fact  that  it  would  work,  as  Judge  Brad- 
ley said,  "by  silent  approaches  and  slight  deviations," 
and  that,  where  the  sympathies  or  the  prejudices  of  the 
electorate  were  temporarily  aroused  in  a  particular 
case,  it  would  be  impossible  successfully  to  resist  a  re- 
call by  an  unemotional  discussion  of  its  ultimate  effect 
in  contributing  to  the  overthrow  of  our  constitutional 
form  of  government. 

It  is  said  that  the  recall  of  decisions  has  been  un- 
fairly attacked  because  it  has  been  charged  that  it 
amounted  to  "a  reversal  of  judicial  decisions  by  pop- 
ular vote."  This  seems,  however,  to  be  an  essentially 
fair  description.  It  is  quite  true  that  it  is  not  pro- 
posed to  review  decisions  in  ordinary  litigation;  that 
is,  where  between  individual  litigants,  the  ordinary  and 
conventional  rules  of  our  system  of  law  are  applied. 
But,  passing  the  question  whether  if  the  principle  of 
the  recall  were  conceded  it  might  not  be  pressed  to  the 
point  of  applying  it  to  such  cases,  the  fact  is  that  great 
constitutional  questions  always  arise  in  cases  where  the 
rights  of  individuals  are  involved,  and  in  the  case 
of  the  recall  of  a  decision,  it  would  always  happen  that 


RECALL  OF  DECISIONS  245 

the  vote  of  the  people  would  deprive  some  individual 
citizen  of  his  liberty  or  his  property,  in  violation  of  his 
constitutional  rights  as  interpreted  by  the  court.  And 
it  would  not  be  alone  that  citizen  who  would  suffer; 
for  any  one  might  at  any  time  have  his  liberty  or  his 
property  put  in  jeopardy  by  the  recall  of  a  decision 
upon  the  same  question  by  a  misled,  an  excited  or  a 
tyrannous  majority.  It  must  not  be  forgotten  that  the 
whole  system  of  Anglo-Saxon  civil  liberty  has  been 
built  up  upon  principles  settled  in  controversies  where 
the  interest  or  liberty  of  single  individuals  was  alone 
involved,  as  for  instance,  in  the  cases  of  John  Hamp- 
den and  the  Ship  Money,  of  Wilkes  and  the  Freedom 
of  the  Press  in  England,  and  of  Dred  Scott  and  the 
Fugitive  Slave  Law. 

Under  the  baneful  influence  of  the  recall,  the  char- 
acter of  the  bench  would,  as  I  have  already  suggested, 
deteriorate ;  and  the  judicial  function  would  finally  be- 
come a  servile  instrumentality  for  carrying  into  effect 
the  wishes  of  a  majority  of  the  electorate.  Contem- 
plate the  position  in  which  dignified  judges  like  those 
composing  our  Court  of  Appeals  would  be  placed  by 
a  movement  for  a  recall  of  one  of  their  decisions! 
After  giving  to  a  case  an  industrious  examination  of 
the  evidence  and  the  arguments,  and  after  an  impartial 
consideration  of  it  from  the  standpoint  of  the  accumu- 
lated wisdom  of  the  wise  judges  and  statesmen  of  the 
past,  embodied  in  constitutions  and  our  system  of  jur- 
isprudence, they  would  find  their  decision  submitted 
to  a  vote  of  the  people  with  the  record  either  misrepre- 
sented or  disregarded,  and  with  no  suitable  or  adequate 
opportunity  to  present  the  weighty  considerations 
which  had  led  them  to  their  conclusion.  The  reasons 
which  would  sway  the  electorate  would  probably  be 
those  of  partisanship  in  some  form,  which  the  judges 


246  PAPERS  AND  ADDRESSES 

would  have  studiously  refrained  from  considering ;  and 
the  judges  could  not  demean  themselves — if  their  par- 
ticipation were  tolerated  at  all — by  attempting  to  meet 
the  arguments  of  the  political  orators,  especially  when, 
as  it  would  often  happen,  they  were  of  a  character 
that,  if  urged  in  open  court,  would  be  regarded  as 
contumacious.  Nothing  could  present  a  situation  so 
offensive  to  the  dignity  of  a  court  representing  the 
majesty  of  the  law.  The  grandest  function  of  a  court 
is  performed  when  it  pronounces  a  judgment  in  accord- 
ance with  righteousness  and  law,  even  though  it  be 
denounced  as  a  usurper  of  the  rights  of  the  people; 
and  it  is  in  just  that  kind  of  cases  that  the  recall 
of  decisions  would  most  frequently  be  resorted  to.  It 
is  difficult  to  conceive  of  a  court  of  the  dignity  of  the 
Court  of  Appeals  of  the  State  of  New  York,  composed, 
as  Mr.  Roosevelt  says,  of  ''reputable  and  honorable 
men,"  being  subjected  to  the  humiliation  of  such  an 
ordeal.  Rather  than  endure  it,  the  men  who  were  of 
the  greatest  judicial  skill  and  experience  and  of  the 
highest  character  would  refuse  to  serve;  and  as  a 
result  the  character  of  the  judiciary  would  inevitably 
deteriorate. 

But  it  will  be  asked:  if  the  fundamental  objections 
to  the  recall  of  decisions  are  insurmountable,  how  can 
some  courts  be  made  to  adopt  a  point  of  view  in  con- 
struing the  restraints  of  the  Constitution  which  is  more 
accurately  adjusted  to  the  developing  social  and  in- 
dustrial philosophy  of  the  day?  I  have  already  said 
that  this  can  and  should  be  done  either  by  amending 
the  Constitution  or  by  presenting  the  mooted  questions 
in  new  cases  and  pressing  upon  the  court  new  consid- 
erations to  induce  them  to  change  the  decisions  com- 
plained of,  as  well  as  by  taking  suitable  steps  to  bring 
public  opinion  directly  to  bear  upon  the  subject.     But 


RECALL  OF  DECISIONS  247 

an  answer  to  the  question  more  complete  and  satisfac- 
tory than  any  I  can  give  is  afforded  by  the  action  and 
words  of  Abraham  Lincoln  in  relation  to  the  Dred 
Scott  decision.  Mr.  Lincoln  believed  the  Dred  Scott 
decision  to  be  unsound  as  a  matter  of  constitutional 
interpretation;  and  as  a  statesman  he  refused  to  be 
governed  by  it  as  a  political  rule ;  but  he  never  denied 
its  binding  effect.  He  asserted  that  it  remained  open 
for  the  parties  to  a  future  suit  where  the  same  question 
might  again  arise,  to  attempt,  by  presenting  new  views 
of  the  question,  to  induce  the  Supreme  Court  to  put 
a  different  interpretation  upon  the  Constitution;  or, 
failing  that,  to  procure  an  amendment  of  the  Constitu- 
tion. By  so  doing,  he  said:  "I  disturb  no  right  of 
property,  create  no  disorder,  excite  no  mobs."  He 
elaborated  this  view  as  follows: 

"Judicial  decisions  have  two  uses:  first,  to  absolutely  de- 
termine the  cases  decided;  and  secondly,  to  indicate  to  the 
public  how  other  similar  cases  will  be  decided  when  they 
arise.  For  the  latter  use  they  are  called  precedents  and  au- 
thorities. We  believe  as  much  as  Judge  Douglas  (perhaps 
more)  in  obedience  to  and  respect  for  the  judicial  department 
of  government.  We  think  its  decisions  on  constitutional 
questions  when  fully  settled  should  control  not  only  the  par- 
ticular cases  decided,  but  the  general  policy  of  the  country, 
subject  to  be  disturbed  only  by  amendments  of  the  Constitu- 
tion as  provided  in  that  instrument  itself,     more  than  this 

WOULD   BE   REVOLUTION." 

Our  history  does  not  afford  a  more  conspicuous  ex- 
ample of  an  unqualified  recognition  of  the  necessity 
for  avoiding  incorrect  decisions  by  those  methods 
only  which  are  clearly  within  the  limitations  of  the 
Constitution.  It  has  been  said  that  Mr.  Lincoln  "ac- 
tually applied  in   successful  fashion  the  doctrine  of 


248  PAPEES  AND  ADDRESSES 

recall"  to  the  Dred  Scott  decision.  But  everything  he 
said  in  his  debate  with  Douglas  and  in  his  first  inaugu- 
ral address  shows  that  this  is  a  clear  misconception  of 
his  attitude;  for  he  pointed  out  in  the  simplest  and 
clearest  language  that  he  proposed  to  reverse  the  de- 
cision by  methods  clearly  within  the  then  existing  pro- 
visions of  the  Constitution,  and  that  he  did  not  pro- 
pose to  resort,  under  any  circumstances,  to  revolution- 
ary innovations  like  the  recall. 

The  objections  to  the  recall  of  decisions  are  funda- 
mental. They  are  based  on  the  principles  which  cannot 
be  surrendered  without  endangering  our  civil  liberties. 
They  cannot  be  overcome  by  guarded  phraseology  or 
by  a  multitude  of  provisos.  Any  one  proposing  a  fun- 
damental change  of  our  constitutional  law  should  be 
able  to  show  clearly  that  it  will  not  imperil  the  life, 
liberty  or  property  of  the  American  citizens  either  of 
to-day  or  of  the  future.  The  effect  of  radical  changes 
of  our  fundamental  law  in  any  situation  which  a 
reasonable  foresight  may  present  to  the  mind  must 
always  be  considered.  In  the  wise  and  philosophical 
observations  of  Washington,  Hamilton,  Webster  and 
Lincoln  upon  our  Federal  Constitution  and  its  bal- 
ances and  restraints,  their  intellectual  vision  was  not 
confined  to  their  own  age.  They  spoke  from  the  stand- 
point of  their  study  of  two  thousand  years  of  history 
which  taught  that  governments  must  be  protected 
against  the  known  tendencies  of  human  nature.  They 
had  learned  that  popular  governments  where  the  peo- 
ple had  failed  to  impose  permanent  restraints  upon 
themselves  had  always  proved  houses  built  upon  the 
sand,  and  that  in  the  inevitable  cataclysm  it  had  been 
the  individual  of  the  minority  who  at  the  behest  of  the 
temporary  majority  was  oppressed  and  deprived  of  his 
life,  his  property  or  his  liberty.     To  give  heed  to  these 


RECALL  OF  DECISIONS  249 

lessons  of  history  does  not  indicate  a  disbelief  in  the 
proposition  that  the  people  are,  and  must  always  con- 
tinue to  be,  the  only  source  of  political  power.  Web- 
ster did  not  indulge  in  exaggeration  when  he  asserted 
that  "Whoever  says,  or  speaks  as  if  he  thought,  that 
anybody  looks  to  any  other  source  of  political  power 
in  this  country  than  the  people,  must  have  a  stronger 
and  wilder  imagination  (than  Don  Quixote),  for  he 
sees  nothing  but  the  creations  of  his  own  fancy.  He 
stares  at  phantoms ' ' ;  but,  at  the  same  time,  he  uttered 
a  solemn  admonition  against  "the  sudden  impulses 
of  mere  majorities,"  and  said  that  it  was  the  "great 
conservative  principle"  established  by  the  American 
people,  "in  constituting  form's  of  government,  that 
they  should  secure  what  they  had  established  against 
hasty  changes  by  mere  majorities."  We  must,  there- 
fore, not  be  deterred  by  the  oft-repeated,  but  un- 
founded, charge  that  we  do  not  trust  the  people  and 
we  must  approach  a  consideration  of  the  doctrine  of 
the  recall  of  decisions  from  the  standpoint  of  histori- 
cal instances,  philosophical  reflections  and  confidence 
in  our  institutions.  We  must  not  fail  to  deal  with  it 
seriously,  because  it  appeals  to  many  people  sincerely 
seeking  to  improve  social  and  industrial  conditions, 
who  have  been  misguided  by  partisan  appeal ;  and  our 
efforts  must  be  unremitting  because  the  recall  is 
pressed  by  persons  whose  influence  in  our  community 
is  so  potent  as  to  make  even  such  a  heresy,  when 
advocated  by  them,  a  real  menace. 

The  recall  cannot  be  dismissed  without  grave  con- 
sideration, merely  because  there  is  ground  to  think 
that  it  has  been  put  forward  for  some  temporary  or 
ulterior  political  purpose;  for  it  is  too  subtle,  too 
plausible  in  its  superficial  aspects  and  too  dangerous 
in  those  which  lurk  beneath  the  surface.     It  should  be 


250  PAPERS  AND  ADDRESSES 

combatted  by  every  resource  at  our  command.  Espec- 
ially should  members  of  our  own  noble  profession  avoid 
being  lulled  into  inactivity  by  their  convictions  that,  be- 
cause the  recall  is  so  revolutionary,  therefore  it  is  im- 
possible; for  the  real  character  and  effect  of  the 
doctrine  is  more  clear  to  us  than  to  those  who  have 
fewer  occasions  to  consider  the  importance  of  main- 
taining the  balance  of  the  different  parts  of  the  Con- 
stitution. It  will  not  do  to  content  ourselves  with 
reiterating  the  formula  that  the  judiciary  must  be 
independent  and  the  restraints  of  the  Constitution 
must  be  preserved.  We  must  be  prepared  also  to 
give  reasons  and  stimulate  thought  among  the  people. 
This  is  a  task  that  the  lawyer  can  perform  intelligently, 
sympathetically  and  patriotically.  He  need  surround 
the  courts  with  no  undue  sanctity,  for  none  better  than 
he  should  know  that  judges  are  human,  that  in  their 
administration  of  justice  their  acts  should  be  sub- 
jected to  the  closest  scrutiny,  and  that  if  their  proce- 
dure is  too  slow  or  too  expensive  or  too  technical,  it 
should  be  rigidly  reformed.  But  he  also  knows  that 
the  preservation  in  our  governmental  system  of  an 
absolutely  independent  judiciary  as  a  restraint  upon 
the  too  impulsive  or  the  too  frequent  exercise  of  the 
supreme  political  power  is  essential  to  the  continued 
life  of  the  nation;  and  he  should  not  grow  weary  in 
conveying  that  message  to  his  fellow  citizens. 


STATE  CONTROL  OF  NAVIGABLE  WATERS 


XI 

STATE  CONTROL  OF  NAVIGABLE  WATERS  » 

A  kecent  issue  of  the  Review  2  contained  a  discus- 
sion of  the  decision  of  the  Court  of  Appeals  in  the 
case  of  Long  Sault  Development  Company  v.  Ken- 
nedy.3 A  consideration  of  the  effect  of  that  decision 
upon  the  development  of  our  waterways  for  commer- 
cial purposes  may  have  some  interest. 

In  1907  the  legislature  passed  an  act  incorporating 
the  Long  Sault  Development  Company  and  authoriz- 
ing it  to  construct  a  gigantic  dam  across  the  St.  Law- 
rence River,  at  the  famous  Long  Sault  Rapids.4  The 
project  contemplated  the  expenditure  of  $35,000,000 
in  the  improvement  of  navigation  and  the  creation  of 
a  water  power  capable  of  generating  electrical  energy 
to  the  extent  of  four  or  five  hundred  thousand  horse 
power.  Governor  Hughes  refused  to  sign  the  bill  as 
it  was  first  passed  by  the  legislature  because  it  did  not 
provide  for  participation  by  the  state  in  the  profits 
of  the  enterprise.  Accordingly  it  was  redrawn  so  as 
to  provide  that  after  1911  a  minimum  annual  payment 
of  $25,000  should  be  made  to  the  state,  and  that  after 
the  power  plant  was  in  operation  the  state  should  re- 
ceive at  the  rate  of  25  cents  per  electrical  horse  power 
generated  in  excess  of  100,000  of  such  horse  power. 
Thus  amended  the  act  was  passed  and  signed  by  Gov- 
ernor Hughes.  Besides  paying  annually  the  amounts 
prescribed  by  the  act,  the  company  has  expended  nearly 

i  Reprinted  from  Columbia  Law  Review  for  May,  1915. 

2  Columbia  Law  Review,  68. 

3  (1914)   212  N.  Y.  1.     The  case  has  been  taken  on  writ  of  error  to 
the  Supreme  Court  of  the  United  States. 

«N.  Y.  Laws  of  1907,  c.  355. 

253 


254  PAPERS  AND  ADDRESSES 

a  million  dollars  in  acquiring  land  and  riparian  rights, 
and  in  engineering  and  other  expenses  in  preparation 
for  the  work  of  construction.  The  right  of  the  com- 
pany to  commence  work  was  expressly  conditioned 
upon  its  obtaining  the  consent  of  Congress.  Such 
consent  has  not  been  obtained,  although  the  company 
has  made  efforts  to  obtain  it. 

In  1913,  the  legislature  passed  an  act 5  purporting  to 
repeal  the  charter  of  the  company  upon  four  grounds, 
three  of  which  assert  the  unconstitutionality  of  the 
charter  and  the  fourth  that  it  was  beyond  the  power  of 
the  legislature  to  authorize  the  transfer  of  land  under 
the  waters  of  the  St.  Lawrence  River  as  they  were  held 
in  a  sovereign  capacity.6  The  Appellate  Division  of 
the  Third  Department  found  that  none  of  these  four 

s  N.  Y.  Laws  of  1913,  c.  452. 

6  "Section  1.  Chapter  three  hundred  and  fifty-five  of  the  laws  of  nine- 
teen hundred  and  seven,  ...  is  hereby  repealed,  upon  the  following 
grounds : 

"First.  That  chapter  three  hundred  and  fifty-five  of  the  laws  of 
nineteen  hundred  and  seven  is  unconstitutional  in  that  it  contravenes 
section  eighteen  of  article  three  of  the  state  constitution,  which  pro- 
vides that  the  legislature  shall  not  pass  a  private  or  local  bill  granting 
to  any  private  corporation,  association  or  individual  any  exclusive 
privilege,  immunity  or  franchise  whatever. 

"Second.  That  the  said  act  is  unconstitutional  in  that  it  contra- 
venes section  seven  of  article  seven  of  the  state  constitution,  which 
provides  that  the  lands  of  the  state  now  owned  or  hereafter  acquired, 
constituting  the  forest  preserve,  as  now  fixed  by  law,  shall  be  forever 
kept  as  wild  forest  lands,  and  shall  not  be  leased,  sold  or  exchanged,  or 
taken  by  any  corporation,  public  or  private. 

"Third.  That  the  said  act  violates  section  sixteen  of  article  three  of 
the  state  constitution,  which  provides  that  no  private  or  local  bill, 
which  may  be  passed  by  the  legislature,  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed  in  its  title. 

"Fourth.  That  the  said  act  is  invalid  as  being  in  excess  of  the  powers 
of  the  legislature,  in  that  it  attempted  to  provide  for  the  alienation  of 
the  state  to  the  Long  Sault  Development  Company  of  title  to  the  land 
in  the  bed  of  the  St.  Lawrence  River.  The  title  of  the  state  in  those 
lands  is  a  sovereign  right  rather  than  a  proprietary  title.  It  is  incon- 
sistent with  that  right,  which  must  be  exercised  for  the  benefit  of  the 
whole  people,  that  the  title  to  the  bed  of  a  navigable  stream  should 
be  granted  in  fee  to  a  private  corporation." 

N.  Y.  Laws  of  1913,  c.  452. 


CONTROL  OF  NAVIGABLE  WATERS      255 

grounds  was  adequate  to  justify  the  repeal ;  but  it  also 
held  that  the  repealing  act  and  another  act  passed  at 
the  same  time  taken  together  constituted  a  taking  by 
right  of  eminent  domain,  and  it  therefore  denied  the 
relief  asked  for  by  the  company.7  The  Court  of  Ap- 
peals affirmed  the  order  of  the  Appellate  Division  but 
based  its  conclusion  exclusively  upon  a  ground  not 
specifically  mentioned  in  the  repealing  act;  namely, 
that  it  was  attempted  by  the  charter  to  transfer  to  a 
private  corporation  the  control,  not  alone  of  the  land 
under  the  water  (which  was  of  limited  extent,  being 
only  that  occupied  by  the  works  erected),  but  also  the 
" entire  control  of  navigation"  at  the  Long  Sault 
Rapids,  and  that  it  was  beyond  the  power  of  the  legis- 
lature to  cede  such  control  because  thereby  the  state 
would  part  "for  all  time  with  its  own  power  to  improve 
such  navigation."  An  extract  from  the  opinion  is 
given  in  a  note.8 

7  (1913)   158  App.  Div.  398. 

8  "It  (the  grant)  virtually  turns  over  to  the  corporation  entire  con- 
trol of  navigation  at  the  Long  Sault  Rapids  (provided,  of  course,  that 
the  consent  of  Congress  can  be  obtained) .  All  that  the  corporation  must 
do  is  to  construct  the  contemplated  works,  pay  the  stipulated  sums 
and  keep  the  navigation  as  good  as  it  is  now.  No  matter  how  much  the 
interests  of  the  public  may  demand  the  improvement  thereof  in  the 
future,  the  state  will  be  powerless  to  act  either  directly  or  by  constraint 
upon  the  corporation.  It  is  precisely  as  though  the  legislature  should 
confer  upon  a  corporation  exclusive  authority  to  construct  works  on  the 
Hudson  River  to  improve  the  navigation  between  Albany  and  Troy 
upon  condition  that  such  navigation  shall  be  preserved  in  as  good  con- 
dition as  the  same  is  at  present,  and  thereby  preclude  the  state  from 
ever  hereafter  improving  the  navigation  itself.  In  my  opinion  the  legis- 
lature cannot  make  such  a  contract  in  behalf  of  the  state.  In  Illinois 
Central  Railroad  Company  v.  Illinois  (146  U.  S.  387)  the  attempted 
alienation  of  1,000  acres  of  the  harbor  of  Chicago  was  condemned  on 
account  of  the  extent  of  the  area  granted.  Here  the  grant  is  objec- 
tionable on  account  of  the  abdication  of  the  state's  control  over  waters 
which  are  still  to  be  preserved  as  navigable  but  which  are  to  be 
turned  over  wholly  to  the  dominion  of  a  private  corporation.  In  this 
discussion  I  assume  that  the  improvement  of  navigation  was  a  real, 
even  if  subsidiary,  purpose  of  the  enactment  and  not  merely  a  cloak 
for  a  power  development  project.     The  point  that  I  desire  to  emphasize 


256  PAPERS  AND  ADDRESSES 

While  conceding  the  power  of  the  legislature  to  grant 
lands  under  water  for  beneficial  uses  which  ' '  can  fairly 
be  said  to  be  for  the  public  benefit  or  not  injurious  to 
the  public,"  the  court  held  that  the  grant  to  the  Long 
Sault  Development  Company  could  not  be  sustained  as 
being  of  that  character  because  "no  matter  how  much 
the  interests  of  the  public  may  demand  the  improve- 
ment thereof  in  the  future,  the  state  will  be  powerless 
to  act  either  directly  or  by  constraint  upon  the  corpora- 
tion. .  .  .  Here  the  grant  is  objectionable  on  account 
of  the  abdication  of  the  state's  control  over  waters 
which  are  still  to  be  preserved  as  navigable  but  which 
are  to  be  turned  over  wholly  to  the  dominion  of  a 
private  corporation." 

This  doctrine  as  applied  to  the  facts  in  the  Long 
Sault  case,  if  it  shall  be  found  not  to  violate  any  rights 
of  the  company  secured  by  the  Federal  Constitution, 
will  have  a  far-reaching  effect  upon  the  improvement 
by  private  enterprise  of  navigable  streams  in  this 
state. 

The  facts  are  thus  referred  to  by  the  court,  viz. : 

"As  is  generally  known,  the  celebrated  Long  Sault  rapids 
constitute  a  substantial  obstacle  to  the  navigation  of  the  St. 
Lawrence  for  commercial  purposes,  being  navigated  by  only 
one  line  of  passenger  boats  during  the  tourist  season.  In  the 
petition  in  this  proceeding  the  effects  of  the  proposed  scheme 
on  navigation  are  summarized  as  follows : 

is  that  the  legislature  cannot  authorize  the  conveyance  of  a  navigable 
portion  of  the  St.  Lawrence  to  a  private  company  to  maintain  and 
control  navigation  thereon,  thereby  parting  for  all  time  with  its  own 
power  to  improve  such  navigation.  The  privilege  of  the  state  to  control 
the  St.  Lawrence  as  a  navigable  river  (subject  to  the  direction  of 
Congress)  cannot  be  assigned  to  others  in  the  manner  attempted  by 
this  legislation.  As  long  as  the  waters  are  maintained  as  navigable 
they  remain  public  waters  of  the  state;  and  as  long  as  they  remain 
public  waters  of  the  state  the  state  is  bound  to  retain  control  over 
them  in  the  public  interest." 

Long  Sault  Development  Company  v.  Kennedy   (1914)  212  N.  Y.  1,  9. 


CONTROL  OF  NAVIGABLE  WATERS     257 

"  'The  river,  which  at  Long  Sault  is  now  practically  unnav- 
igable,  will  become  navigable  for  all  classes  of  vessels.  Both 
of  the  contemplated  locks  will  be  continuously  operated  dur- 
ing the  navigation  season  toll  free.  Reliable  and  economical 
power  will  be  made  available  within  the  radius  of  transmission 
of  electricity  from  the  power  houses.  New  industries  will 
thereby  be  created.  There  will  be  increased  quantities  of 
products  from  manufacturing  plants  utilizing  the  power, 
which  products  must  be  distributed  by  boat  or  rail.'  " 

Some  question  having  been  raised  as  to  whether  the 
proposed  dams  would  improve  navigation,  the  court 
stated  that  it  assumed  ''that  the  improvement  of  navi- 
gation was  a  real,  even  if  subsidiary,  purpose  of  the 
enactment  and  not  merely  a  cloak  for  a  power-devel- 
opment project;"  and  this  assumption  was  justified 
under  the  principle  that  such  acts  "are  valid  if  it  can 
be  reasonably  inferred  from  all  their  provisions  that 
the  improvement  of  navigation  was  their  primary  and 
principal  object.  No  express  declaration  in  the  acts 
that  such  w^as  the  object  and  purpose  of  the  legislature 
in  enacting  them,  is  required ;  nor  is  such  a  declaration 
usual  in  acts  of  a  similar  nature. ' ' 9 

Neither  the  magnitude  of  the  improvement  as  a 
power  project  nor  the  importance  of  the  St.  Lawrence 
River  because  of  its  size  and  international  character 
were  referred  to  by  the  court  as  exceptional  circum- 
stances in  support  of  the  broad  doctrine  laid  down  in 
its  opinion;  indeed,  for  the  purpose  of  illustration, 
the  court  intimated  that  the  same  rule  would  be  applied 
if  the  legislation  had  authorized  works  for  the  improve- 
ment of  the  navigation  of  the  Hudson  River  between 
Albany  and  Troy;  and,  of  course,  the  principle  of  the 
decision  would  be  equally  applicable  to  prevent  a  grant 
to  a  private  corporation  to  improve  the  navigation  of 

oTewksbury  vs.  Schulenberg   (1877)  41  Wis.  584,  593. 


258  PAPERS  AND  ADDRESSES 

the  Hudson  in  its  upper  reaches,  or  the  Mohawk  or 
any  similar  stream  where  the  volume  of  water  might 
be  sufficient  to  make  an  improvement  of  navigation  and 
the  incidental  water  power  a  profitable  enterprise.  It 
may  fairly  be  assumed  that  the  legislature  and  Gov- 
ernor Hughes  were  of  the  opinion  that  specific  provi- 
sions for  the  protection  of  navigation  were  unneces- 
sary because,  under  the  charter,  no  work  could  be 
commenced  until  the  approval  of  the  federal  govern- 
ment had  been  obtained,  and  because  that  approval 
would  insure:  first,  adequate  provision  in  any  special 
act  of  Congress  for  the  protection  of  the  public  inter- 
ests; second,  the  enforcement  of  all  of  the  stringent 
provisions  concerning  the  erection  of  dams  in  naviga- 
ble streams  contained  in  the  Federal  Dam  Act,  partic- 
ularly that  which  vests  in  the  War  Department  the 
power  to  determine  what  kind  of  a  dam  or  similar 
structure  may  be  constructed  in  a  navigable  stream; 
and,  third,  the  permanent  supervision  by  the  federal 
authorities  in  the  operation  of  all  of  the  works  so  far 
as  such  operation  might  affect  navigation. 

Without  adverting  to  the  features  of  the  Long  Sault 
charter  just  mentioned,  the  court  lays  down  the  broad 
proposition  that  the  state  is  without  power  to  author- 
ize a  private  corporation  to  build  works  in  a  navigable 
river  for  the  improvement  of  navigation  and  to  grant 
to  it  the  irrevocable  right  to  enjoy  the  water  power 
incidentally  created  thereby,  because  the  building, 
maintenance  and  control  of  such  works  necessarily 
involve  the  control  of  navigation  and  preclude  for  all 
time  the  exercise  by  the  state  of  "its  own  power  to 
improve  such  navigation."  The  court  draws  a  dis- 
tinction between  cases  on  the  one  hand  where  the  state 
surrenders  its  control  of  navigation  by  granting  the 
right  to  build  and  maintain  dams,  locks  and  similar 


CONTROL  OF  NAVIGABLE  WATERS     259 

works,  and  those  on  the  other  hand  where  the  struc- 
tures authorized  are  piers,  bridges  or  other  similar 
structures  in  public  waters  designed  to  facilitate  the 
operations  of  commerce.  Without  doubt  the  building 
of  a  dam  which  changes  the  water  level  of  a  navigable 
river  and  forces  vessels  to  use  locks  and  canals,  in- 
volves a  more  direct  and  complete  control  over  vessels 
using  the  river  than  piers,  bridges  or  similar  structures 
which  may  legally  occupy,  to  the  exclusion  of  others,  a 
limited  portion  of  the  navigable  portion  of  a  river;  but 
it  has  not  heretofore  been  supposed  that  the  two  kinds 
of  grants  differed  except  in  the  extent  that  they  in- 
volved interference  with  navigable  waters  in  their 
natural  state. 

Where  navigable  streams  in  the  State  of  New  York 
have  been  developed  for  water-power  purposes,  the 
work  has  usually  been  done  by  private  companies,  or 
individuals  under  authority  granted  by  the  legislature. 
A  condition  for  the  improvement  (or  even  the  preser- 
vation) of  navigation  has  sometimes,  but  by  no  means 
always,  been  imposed.  The  practice  prior  to  1840  dif- 
fered materially  from  that  prevailing  since  1882,  as  is 
explained  in  a  note.10     Generally  since  1882,  the  legis- 

10  By  a  general  dam  act  passed  in  1813  (Chapter  47)  the  legislature 
made  separate  grants  to  a  number  of  individuals  to  ereet  dams  in 
certain  rivers  declared  by  the  act  to  be  public  highways.  These  grants 
were  for  a  limited  period  and  were  made  sidjject  to  certain  restrictions 
designed  to  prevent  any  obstruction  to  navigation,  which  was  to  be 
free  from  the  payment  of  tolls.  From  1813  to  1840  the  legislature 
passed  more  than  125  special  acts  granting  to  individuals  the  right  to 
build  dams  in  certain  streams  which  were  navigable  or  capable  of  being 
developed  for  navigation.  Generally  these  grants  were  made  subject  to 
one  or  more  of  the  following  conditions,  viz.:  (a)  That  the  court  could 
revoke  the  grant  if  the  dam  proved  to  be  an  inconvenience  to  the  public; 
(b)  that  the  grant  could  be  repealed  without  liability  for  damage  or 
compensation  to  the  grantee  whenever  the  public  interest  might  require; 
and  (c)  that  the  act  should  become  void  if  passage  upon  the  stream 
was  obstructed  by  the  dam. 

In  over  forty  years,  between  1840  and  18S2,  there  were  hut  few 
special   acts  granting  the  right  to   build   dams.     Since    1882.   however, 


260  PAPERS  AND  ADDRESSES 

lative  acts  besides  authorizing  the  erection  by  private 
corporations  of  dams  and  power  plants  have  provided 
for  the  grant  to  such  corporations  of  the  interest  of  the 
state  in  the  land  under  water  covered  by  the  dams  and 
other  works.  It  has  been  supposed  that  such  acts  cre- 
ated franchises,  entitling  the  grantees  to  have  the  bene- 
ficial use  of  the  water  power,  and  that  they  could  not 
be  deprived  of  such  franchises  without  compensation. 
The  industrial  requirements  of  this  state  do  not 
seem  to  have  led  to  the  extensive  development  of  its 
waterways  by  artificially  increasing  their  navigability. 
Undoubtedly  this  has  been  due  in  part  to  the  extensive 
development  of  the  canal  system.  State  canals  are  fre- 
quently fed  by  the  waters   of  potentially  navigable 

the  legislature  has  passed  about  twenty  special  acts  granting  the  right 
to  certain  waterpower  companies  (and  in  a  few  cases  to  individuals) 
to  erect  dams  across  some  of  the  larger  streams  of  the  state,  such  as  the 
Hudson  and  Mohawk  rivers. 

The  provisions  of  these  acts  were  different  from  those  of  the  acts 
passed  prior  to  1840  in  the  following  particulars,  viz:  No  right  of 
repeal  was  reserved ;  there  was  no  express  condition  that  the  navigation 
was  to  be  improved,  in  some  cases  it  being  provided  that  navigation 
should  not  be  injured,  in  others  the  subject  not  being  mentioned  at  all ; 
generally  there  was  no  condition  for  the  resumption  by  the  state  of 
control  of  na\  igat.ion ;  in  some  cases  the  use  of  the  land  under  the 
water  covered  by  the  dam,  and  flooded  by  its  erection  was  given  to  the 
grantee  and  in  some  cases  the  legal  title  was  conveyed  to  it;  and  there 
was  no  limitation  as  to  the  time  of  enjoyment  and  in  five  cases  the  right 
was  granted  to  maintain  the  dam  "forever." 

The  dams  constructed  before  1840  were  probably  not  of  expensive  or 
elaborate  construction  but  were  built  and  used  to  create  water  power  for 
the  operation  of  sawmills  and  grist  mills  belonging  to  grantees  owning 
the  lands  and  riparian  rights  in  the  immediate  vicinity.  At  that  time 
the  needs  of  navigation  were  not  rapidly  developing  and  the  grantees 
were,  therefore,  not  deterred  by  the  limitations  imposed  by  the  legis- 
lature from  making  the  expenditures  necessarily  involved.  The  com- 
panies receiving  grants  made  since  1882,  however,  have  been  organized 
for  the  purpose  of  developing  waterpower  to  be  converted  into  electrical 
energy  for  the  operation  of  extensive  modern  manufacturing  plants. 
Such  enterprises  involve  the  building  at  large  expense  of  masonry  or 
concrete  dams  and  they  would  not  be  undertaken  if  the  right  to  main- 
tain the  dams  were  to  be  made  subject,  at  the  will  of  the  legislature, 
to  termination  without  compensation.  These  circumstances  perhaps  ex- 
plain the  change  of  legislative  policy  since  1882. 


CONTROL  OF  NAVIGABLE  WATERS     261 

rivers  which  are  themselves  left  in  their  natural  state, 
or  even  depleted  to  supply  the  canals.  This  condition 
is  different  from  that  prevailing  in  other  states  where 
important  industries  make  transportation  by  water  of 
the  highest  importance.  In  such  states  statutes  fre- 
quently provide  for  the  improvement  of  waterways  by 
private  corporations  which,  in  consideration  of  bearing 
the  expense,  are  given  the  right  in  perpetuity  to  collect 
tolls  from  vessels  making  use  of  the  improved  facili- 
ties. The  constitutions  of  some  states  forbid  the  ex- 
penditure of  public  moneys  for  such  improvements; 
and  there  the  navigability  of  waterways  must  be  im- 
proved by  private  enterprise,  or  not  at  all.  In  states 
where  the  facilities  of  navigation  have  been  managed 
by  private  improvement  companies,  and  tolls  have  been 
imposed  upon  commerce  for  the  use  thereof,  it  has  not 
been  regarded  that  the  control  of  navigable  waters 
necessarily  resulting  from  such  an  arrangement  has 
been  inimical  to  the  public  interest.11 

The  rights  of  such  improvement  companies  were 
dealt  with  by  the  Supreme  Court  of  the  United  States 
in  the  case  of  Monongahela  Navigation  Company  v. 
United  States.12  The  Monongahela  River  in  its  nat- 
ural state  was  navigable  to  a  very  limited  extent  and 
not  at  all  seasons.  The  commerce  upon  the  river  was 
small.  The  Navigation  Company,  under  authority  of  a 
special  act  of  the  legislature  of  Pennsylvania,  con- 
structed a  series  of  seven  dams  and  locks,  whereby  the 
river  was  made  navigable  for  large  steamboats  at  all 
seasons  of  the  year  and  facilities  were  furnished  for  an 
extensive  commerce.  The  United  States  Government 
for  the  purpose  of  still  further  improving  the  naviga- 
tion of  the  river,  and  under  its  constitutional  power  to 

11  Farnham,  "Waters  and  Water  Rights,"  384. 

12  (1893)    148  U.  S.  312. 


262  PAPERS  AND  ADDRESSES 

regulate  commerce,  sought  to  take  possession  of  one  of 
the  dams  and  locks  constructed  by  the  Navigation  Com- 
pany. It  was  contended  that  the  company  had  acquired 
from  the  state  a  vested  right  to  collect  tolls,  of  which 
it  could  not  be  deprived  by  the  United  States  without 
due  compensation.  This  point  was  sustained  by  the 
Supreme  Court,  which  said: 

"That,  in  the  absence  of  congressional  action,  the  State  of 
Pennsylvania  had  the  power,  either  acting  itself  or  through 
a  corporation  which  it  chartered,  to  improve  the  navigation 
of  the  river  by  means  of  locks  and  dams,  and  also  to  author- 
ize the  exaction  of  tolls  for  the  use  of  such  improvements,  are 
matters  upon  which  there  can  be  no  dispute,  in  view  of  the 
many  decisions  of  this  court." 

The  court  further  held  that  neither  the  state  nor  the 
United  States  could  "say  that  such  lock  and  dam  are 
an  obstruction  and  wrongfully  there,  or  that  the  right 
to  compensation  for  the  use  of  this  improvement  by  the 
public  does  not  belong  to  its  owner,  the  Navigation 
Company";  and  that  while  the  federal  government 
had  the  right  to  acquire  the  improvements  if  they  had 
been  made  "under  authority  of  a  charter  granted  by 
the  state  with  a  franchise  to  take  tolls  for  the  use  of 
the  improvement,  in  order  to  determine  the  just  com- 
pensation, such  franchise  must  be  taken  into  account." 
The  court  took  the  view  which  it  had  previously  ex- 
pressed in  its  decision  in  Ruse  v.  Glover,1*  that  im- 
provements to  navigation  made  by  the  construction  of 
dams  and  locks  were  like  wharves  and  docks  con- 
structed to  facilitate  commerce.  Finally  the  court 
said: 

' '  The  theory  of  the  government  seems  to  be,  that  the  right 
of  the  Navigation  Company  to  have  its  property  in  the  river, 

13  (1886)    119  U.  S.  543,  548. 


CONTROL  OF  NAVIGABLE  WATERS     263 

and  the  franchises  given  by  the  state  to  take  tolls  for  the  use 
thereof,  are  conditional  only,  and  that  whenever  the  govern- 
ment, in  the  exercise  of  its  supreme  power,  assumes  control 
of  the  river,  it  destroys  both  the  right  of  the  company  to  have 
its  property  there,  and  the  franchise  to  take  tolls.  But  this 
is  a  misconception.  The  franchise  is  a  vested  right.  The 
state  has  power  to  grant  it.  It  may  retake  it,  as  it  may  take 
other  private  property,  for  public  uses,  upon  the  payment  of 
just  compensation.  A  like,  though  a  superior,  power  exists 
in  the  national  government.  It  may  take  it  for  public  pur- 
poses, and  take  it  even  against  the  will  of  the  state ;  but  it  can 
no  more  take  the  franchise  which  the  state  has  given  than  it 
can  any  private  property  belonging  to  an  individual." 

Commissioners  of  the  Sinking  Fund  v.  Green  and 
Barren  River  Navigation  Company,14  is  another  well- 
considered  case  in  which  the  same  subject  was  dealt 
with.  The  Navigation  Company  was  incorporated  by 
an  act  which  set  forth  that  the  state  had  constructed 
locks  and  dams  on  Green  River  necessitating  large  ex- 
penditures and  that  the  state  being  largely  in  debt  and 
wishing  to  avoid  further  expense,  had  transferred  the 
line  of  navigation  to  the  Navigation  Company  which 
undertook  to  maintain  it  in  repair.  The  lease  was  for 
thirty  years,  the  line  to  be  open  to  all  vessels  on  pay- 
ment of  the  toll  to  the  company.  Twelve  years  after 
the  act  of  incorporation  was  passed  a  repealing  act 
was  passed  terminating  the  lease  and  revoking  the 
right  to  collect  tolls.  The  action  was  commenced  to 
put  the  state  in  possession.  It  was  argued  that  a  navi- 
gable stream  was  public  property  which  could  not  be 
disposed  of  by  the  state. 

The  court  says,  by  Pryor,  J.: 15 

"The  state  has  the  same  power  to  improve  its  navigable 

"  (1880)  79  Ky.  73. 
is  At  p.  78. 


264  PAPERS  AND  ADDRESSES 

streams  that  it  has  any  of  its  highways ;  and  when  it  becomes 
necessary  to  extend  the  line  of  navigation  for  the  purpose  of 
developing  the  resources  of  the  state,  or  to  facilitate  trade  and 
commerce,  the  state  may  contract  with  individuals  or  cor- 
porations for  the  construction  of  such  improvements,  and  as 
a  consideration  therefor,  transfer  to  them  the  tolls  arising 
from  its  navigation." 


,  16 


And  again 

"When  the  property  of  the  citizen  is  taken  in  the  exercise 
of  this  sovereign  power,  the  legislature  may  confer  on  a  cor- 
poration the  right  to  charge  tolls  in  consideration  of  its  being 
placed  in  a  condition  for  public  use;  but  when  the  state  is 
already  in  possession  of  its  navigable  waters,  and  no  condem- 
nation is  requisite  or  compensation  required,  it  is  attempted 
to  be  maintained  that  no  such  power  can  be  exercised,  and 
our  navigable  rivers  are  to  remain  unimproved,  or  the  im- 
provements already  made  permitted  to  decay  for  the  reason 
that  the  state  is  unwilling  to  burden  the  citizen  with  taxation 
for  that  purpose,  and  is  denied  the  power  to  permit  the  im- 
provement to  be  made  by  others,  for  no  other  reason  than  that 
the  law  of  nature  has  already  appropriated  them  to  public 
use. 

"The  fallacy  of  this  reasoning,  if  followed,  would  prevent 
the  state  from  placing  a  dam  in  the  river  that  might  tend  to 
prevent  its  free  use  by  the  citizen  who  was  unable  to  pay  the 
toll." 

The  court  goes  on  to  say  that  the  state  could  resume 
control  of  the  improvements  when  public  necessity  de- 
manded it,  on  payment  of  just  compensation  to  the 
corporation. 

These  two  cases  may  be  said  to  be  typical.  A  num- 
ber of  decisions  dealing  with  similar  cases  are  referred 
to  in  a  note.17     In  all  such  cases  the  state  governments 

is  At  p.  79. 

17  Veazie  v.  Moor  (1852)  14  How.  568:  The  State  of  Maine  conferred 
on  a  corporation  the  exclusive  right  of  navigation  on  a  portion  of  the 


CONTROL  OF  NAVIGABLE  WATERS      265 

have  been  "  powerless  to  act  either  directly  or  by  con- 
straint upon  the  corporation"  for  the  improvement  of 
navigation  except  by  proceeding  under  the  power  of 
eminent  domain  to  acquire  the  control  of  navigation 
ceded  by  legislative  grant  to  private  corporations. 

The  method  proposed  for  compensating  the  Long 
Sault  Company  for  the  expense  of  the  works  author- 
ized by  its  charter  was  not,  as  in  the  Monongahela 
case,  by  a  grant  of  the  right  to  collect  tolls,  for  the  use 
of  the  locks  was  to  be  free,  but  by  a  grant  of  the 
privilege  of  using  and  selling  the  power  generated  by 
the  surplus  waters  collected  above  the  dam.  This  dif- 
ference would  not  seem  to  affect  the  principle  of  the 
decision.  The  plan  of  compensation  adopted  in  the 
Long  Sault  case  has  had  the  sanction  of  legislative 
practice  in  this  state  for  many  years.  In  one  of  the 
legislative  grants  made  since  1882,18  an  act  of  the  legis- 

Penobscot  River  located  entirely  in  the  State  of  Maine.  An  injunction 
was  granted  by  the  state  courts  excluding  the  boats  of  another  company 
from  navigating  on  the  portion  of  the  river  in  question.  The  decision 
was  held  not  in  conflict  with  the  commerce  clause  of  the  Federal 
Constitution. 

Carson  River  Lumbering  Company  v.  Bassett  (1866)  2  Nev.  760:  An 
act  entitled  "An  act  for  the  Improvement  of  the  East  Branch  of  Carson 
River"  gave  an  exclusive  right  to  the  use  of  the  river,  within  certain 
points  which  were  to  be  improved.  This  act  was  held  valid  in  an  action 
on  contract  to  recover  for  the  use  of  the  river  by  another  company. 

McReynolds  v.  Smallhouse  (1871)  71  Ky.  447:  The  state  had 
expended  large  sums  in  improving  the  navigation  on  a  part  of  the 
river,  and  turned  this  portion  of  the  river  over  to  a  corporation  which 
was  to  maintain  it  and  collect  tolls.  The  constitutionality  of  the  act 
was  attacked  on  the  ground  that  "No  man  or  set  of  men  are  entitled 
to  exclusive  separate  public  emoluments  or  privileges  from  the  commu- 
nity but  in  consideration  of  public  services."  But  the  act  according 
the  right  to  collect  the  tolls  was  hold  valid. 

See  also  Colin  v.  Watisau  Boom  Company   (1879)   47  Wis.  314. 

is  The  Genesee  River  Company  was  organized  under  the  provisions  of 
Chapter  605  of  the  Xew  York  Laws  of  18!)S.  The  act  first  recited  that 
it  was  necessary  "for  the  improvement  and  preservation  of  the  public 
health,  for  the  checking  of  floods,  for  the  furnishing  of  water  for  the 
enlarged  Erie  Canal,  and  for  the  supplying  of  pure  and  wholesome  water 
for  municipal  purposes"  that  the  land  described  in  the  act  should  be 
taken  "for  the  public  uses  aforesaid,"  and  that  "in  the  judgment  of  this 


266  PAPERS  AND  ADDRESSES 

lature  specifically  recited  that  certain  necessary  pub- 
lic purposes  which  could  be  accomplished  by  the  devel- 
opment of  the  Genesee  River  ought  not  to  be  under- 
taken at  public  expense  and  therefore  the  Genesee 
River  Company  was  organized  and  was,  in  considera- 
tion of  constructing  the  necessary  works  at  its  own 
expense,  granted  the  beneficial  interest  in  the  water 
power  incidentally  made  available  by  the  erection  of 
the  dam,  which  was  the  principal  feature  of  the  works. 

Before  the  passage  of  the  Long  Sault  act  there  had 
never  been  a  case  where  provision  had  been  made  for 
participation  by  the  state  in  the  profits  of  a  water 
power  plant  constructed  in  a  public  stream  by  the  au- 
thority of  the  legislature.19  This  feature  of  the  Long 
Sault  charter  was  no  doubt  a  result  of  the  growth  of 
the  modern  idea  that  the  state  is  entitled  to,  and  should 
reserve  to  itself,  a  participation  in  the  profits  of  the 
development  of  all  its  natural  resources. 

The  transfer  to  a  private  corporation  of  the  right  to 
use  and  sell  power  as  compensation  for  the  building  of 
a  dam  in  a  navigable  river  was  considered  by  the  Su- 
preme Court  in  Kaukauna  Water  Power  Company  v. 

legislature"  the  compensation  to  be  paid  for  such  land  should  not  be 
made  by  the  state  but  that  the  public  purposes  indicated  should  be 
attained  as  prescribed  in  the  act  and  by  the  organization  of  the  corpora- 
tion created  by  the  act.  The  company  was  authorized  to  build  a  dam 
across  the  Genesee  River  and  was  given  "the  right  to  utilize  all  the 
waterpower  incidentally  created  by  the  construction  of  said  main  dam 
or  reservoir"  and  to  construct  certain  other  structures  "for  the  develop- 
ment of  hydraulic  and  electrical  power  and  for  the  purpose  of  making 
and  transmitting  compressed  air  and  for  other  purposes."  The  company 
was  authorized  to  sell  all  water  and  electrical  power  generated  at  the 
dam  for  its  exclusive  benefit.  There  was  no  limitation  upon  the  period 
of  enjoyment  of  the  rights  granted  by  the  act,  and  no  control  of  naviga- 
tion of  the  stream  was  reserved. 

is  A  similar  provision  was  made  in  the  case  of  The  Clinton  Mills 
Power  Company  which  was  authorized  by  Chapter  514  of  the  New  York 
Laws  of  1911  to  rebuild  and  maintain  a  dam  across  the  Susquehanna 
River  not  exceeding  ten  feet  in  height,  at  a  place  where  the  right  to 
build  a  dam  had  been   granted   in    1813   to   certain   individuals.     The 


CONTROL  OF  NAVIGABLE  WATERS     267 

Green  Bay  and  Mississippi  Canal  Company.20  When 
Wisconsin  was  admitted  to  the  Union,  the  Federal 
Government  granted  to  it  lands,  the  proceeds  of  which 
were  to  be  used  in  improving  certain  waterways  of  the 
state.  A  corporation  was  organized  under  state  leg- 
islative authority  and  with  the  proceeds  of  lands 
granted  to  it,  it  constructed  dams  and  other  works 
in  the  Fox  River — a  navigable  stream.  These  works 
were  subsequently  purchased  by  the  United  States,  but 
the  right  to  use  the  waters  not  needed  for  navigation 
purposes  was  not  transferred.  A  question  arose  be- 
tween the  grantee  of  the  right  to  use  these  surplus 
waters  and  a  riparian  owner.  It  was  held  that  the 
riparian  owner  had  no  rights,  since  the  construction 
of  the  dam  was  undertaken  by  the  state  and  to  reim- 
burse itself  it  was  entitled  to  dispose  of  the  right  to 
use  the  surplus  water  for  power  purposes.  The  court 
said  that  if  the  sole  purpose  of  the  improvement  was 
to  create  a  water  power  to  be  leased  for  manufacturing 
purposes,  the  state  would  probably  not  have  the  right 
to  destroy,  without  compensation,  riparian  rights,  but 
added  that  there  was  nothing  objectionable  in  permit- 
ting the  state  to  let  out  the  use  of  it  to  private  parties, 
and  thus  reimburse  itself  for  the  expenses  of  the  im- 
provement.    The  court  further  said  that 

".  .  .  where  the  surplus  thus  created  was  a  mere  incident  to 
securing  an  adequate  amount  of  water  for  the  public  im- 

grant  was  for  fifty  years  and  during  that  time  the  state  was  to  receive 
75  cents  per  horsepower  produced,  that  amount  to  he  readjusted  every 
five  years.  The  act  contained  certain  provisions  protecting  "mills  now 
operating  higher  up  on  said  stream,"  and  was  declared  to  be  "a  public 
act,  and  the  land  flowed  with  water  as  herein  provided  is  hereby 
declared  to  be  for  public  use."  There  was  no  provision,  however,  reserv- 
ing to  the  state  the  right  to  improve  or  control  navigation  or  giving  the 
public  any  compensatory  advantage  except  that  referred  to  above. 
Some  of  the  provisions  of  the  act  were  obviously  suggested  by  the  Long 
Sault  charter. 

20  (1891)   142  U.  S.  254. 


268  PAPERS  AND  ADDRESSES 

provement,  such  legislation,  it  is  believed,  has  been  uniformly 
sustained.  .  .  .  The  dam  was  built  for  a  public  purpose,  and 
the  act  provided  that  if,  in  its  construction,  any  water  was 
incidentally  created,  it  should  belong  to  the  state,  and  it  might 
be  sold  or  leased,  in  order  that  the  proceeds  of  such  sale 
or  lease  might  assist  in  defraying  the  expenses  of  the  im- 
provement. ' ' 

An  arrangement  such  as  that  referred  to  by  the  court 
might  be  regarded  not  so  much  as  constituting  a  fran- 
chise as  being  a  public  contract  made  by  the  state  for 
the  erection  of  works  to  improve  navigation,  the  water 
power  incidentally  created  being  used  to  defray  the 
cost.  The  water  power  is,  so  to  say,  a  by-product  of 
a  public  improvement  to  be  disposed  of  for  the  public 
benefit.  As  was  said  by  the  Supreme  Court  later,  in 
Green  Bay  &  Mississippi  Canal  Company  v.  Patten 
Paper  Company,21  referring  to  the  same  legislation 
which  was  under  consideration  in  the  Kaukauna  Com- 
pany case,  the  legislation  "has  had  in  view  the  dedica- 
tion of  the  water  powers  incidentally  created  by  the 
dams  and  canal  to  raising  a  fund  to  aid  in  the  erection, 
completion  and  maintenance  of  the  public  works." 

Since  the  Court  of  Appeals  based  its  conclusions  in 
the  Long  Sault  case  upon  principles  established  in  Ill- 
inois Central  Railroad  v.  Illinois,22  some  reference  to 
that  case  should  be  made.  A  grant  had  been  made  by 
the  Illinois  legislature  to  the  railroad  company  for  rail- 
road purposes,  which  included  certain  lands  under  the 
waters  of  Lake  Michigan,  and  in  addition  thereto  land 
under  water  constituting  "nearly  the  whole  of  the  sub- 
merged lands  of  the  harbor,  subject  only  to  the  limita- 
tions that  it  should  not  authorize  obstructions  to  the 
harbor  or  impair  the  public  right  of  navigation,  or 

21  (1898)    172  U.  S.  58. 

22  (1892)    146  U.  S.  387. 


CONTROL  OF  NAVIGABLE  WATERS     269 

exclude  the  legislature  from  regulating  the  rates  of 
wharfage  or  dockage  to  be  charged."  The  effect  of 
the  act,  as  the  court  said,  was  to  vest  in  the  railroad 
company  the  power  "to  manage  and  practically  con- 
trol the  harbor  of  Chicago,  not  simply  for  its  own 
purpose  as  a  railroad  corporation,  but  for  its  own 
profit  generally."  There  was  practically  an  "abdi- 
cation of  the  general  control  of  the  state  over  lands 
under  the  navigable  waters  of  an  entire  harbor  or  bay, 
or  of  a  sea  or  lake."  Only  a  small  portion  of  the 
thousand  acres  attempted  to  be  conveyed  was  needed 
for  the  enjoyment  by  the  railroad  company  of  its  fran- 
chises. Under  such  circumstances  the  court  said  that 
"it  would  not  be  listened  to  that  the  control  and  man- 
agement of  the  harbor  of  that  great  city — a  subject 
of  concern  to  the  whole  people  of  the  state — should 
thus  be  placed  elsewhere  than  in  the  state  itself."  A 
similar  question  arose  in  Coxe  v.  State,23  where,  under 
the  guise  of  an  act  to  authorize  the  drainage  of  marsh 
lands,  there  was  authorized  a  conveyance  by  the  state 
to  a  private  corporation  of  all  of  the  land  which  the 
corporation  chose  to  designate  under  the  waters  of 
the  ocean  or  of  the  sound  within  the  limits  of  the  coun- 
ties of  Kings,  Queens,  Richmond  and  Suffolk,  excepting 
such  land  as  was  within  the  limits  of  the  city  of  Brook- 
lyn. This  description  would  cover  a  water-front  line 
of  probably  several  hundred  miles  along  the  shore  of 
Long  Island.  There  was  no  definite  public  purpose 
expressed  in  or  to  be  inferred  from  the  act  as  a  basis 
for  the  grant,  and  the  court  justly  characterized  the 
proposed  grant  as  being  of  "extravagant  magnitude," 
and  said  that  there  was  nothing  in  the  act  "to  indi- 
cate that  the  grant  was  for  any  public  purpose."  It 
added,  however,  that  "for  every  purpose  which  may 

23  (1895)    144  N.  Y.  396. 


270  PAPERS  AND  ADDRESSES 

be  useful,  convenient  or  necessary  to  the  public,  the 
state  has  the  unquestionable  right  to  make  grants  in 
fee  or  conditionally  for  the  beneficial  use  of  the  gran- 
tee, or  to  promote  commerce  according  to  their  terms." 
Grants  of  public  lands  have  heretofore  been  held  to 
be  beyond  the  power  of  the  legislature  only  in  extreme 
cases  like  the  two  just  referred  to.     In  the  Long  Sault 
case,  however,  the  Court  of  Appeals  has  taken  the  view 
that,  although  the  proposed  improvement  would  con- 
stitute an  improvement  to  the  navigation  of  the  St. 
Lawrence  River,  yet  the  permanency  of  the  improve- 
ment and  the  character  of  the  right  of  the  Long  Sault 
Company  to  enjoy  in  perpetuity  the  incidental  advan- 
tage accruing  from  the  use  for  power  purposes  of  the 
surplus  water  flowing  over  the  dams,  were  of  such  a 
character  and  extent  that  there  was  vested  in  a  private 
corporation  such  a  control  of  the  navigation  of  the 
river  that  the  state  itself  was  precluded  from  resuming 
such  control  when,  for  the  benefit  of  the  public,  it  might 
deem  it  necessary  to  do  so  for  the  improvement  of 
navigation.     The  charter  of  the  Long  Sault  Company 
makes  no  express  grant  of  such  control,  and  the  con- 
clusion of  the  court  was  based  upon  what  it  regarded  as 
a  necessary  implication  from  the  character  and  extent 
of  what  was  granted.     But  upon  this  point,  it  is  not  to 
be  overlooked  that  upon  the  completion  of  the  dams  ac- 
cording to  the  plans  prescribed  by  the  federal  gov- 
ernment, the  company  is  obliged  to  operate  the  locks 
for  the  purpose  of  accommodating  all  shipping  making 
use  of  the  river  and  without  compensation.     In  view  of 
the  obligation  thus  imposed  it  is  difficult  to  see  how 
the  state  can  reasonably  be  said  to  be  deprived  of  any 
control  which  it  would  still  be  entitled  to  exercise  after 
the  federal  government  had  approved  of  the  improve- 
ment and  had  thus  exercised  its  right  to  control  naviga- 


CONTROL  OF  NAVIGABLE  WATERS     271 

tion  under  the  commerce  clause  of  the  Constitution. 
For  the  company  would  not  then  have  the  right  to  in- 
terpose objections  or  impose  burdens  upon  navigation, 
nor  would  either  the  federal  or  the  state  government, 
in  any  respect,  lose  control  of  such  navigation,  except 
so  far  as  the  control  of  the  state  would  disappear 
when  the  federal  government  acted.  Judge  Collin  has 
very  fully  considered  this  point  in  his  dissenting 
opinion,  viz. : 24 

"It  [the  company]  could  not  enter  upon  or  interfere  with 
the  river,  under  the  act,  until  Congress  had  sanctioned  its 
proposed  works  by  authorizing  the  construction  of  the  dams, 
locks  and  canals.  This,  of  necessity,  implies  accurate  and 
complete  Congressional  knowledge  of  the  character,  location, 
extent  and  effects  of  those  authorized  structures.  Until  Con- 
gress had  acted  in  the  matter,  the  state  had  the  unbounded 
and  unrestricted  right  to  exercise  and  effectuate  its  judgments 
in  improving  the  navigability.  .  .  .  The  act  did  not  to  any 
extent  impede  or  shackle  the  state.  It  did  not  give  to  the 
corporation  or  take  from  the  state  any  control  whatsoever 
of  the  navigation.  The  state  remained  in  so  far  as  the  act 
was  concerned,  as  free  and  powerful  to  work  its  will,  in 
the  public  interest,  in  regard  to  the  river  and  its  navigation 
as  it  was  before  the  act  was  passed  or  would  have  been  in  its 
absence.  There  was  no  provision  in  the  act  which  stayed 
the  hand  of  the  state  pending  the  action  of  Congress  in  the 
matter  or  which  directly  or  through  reasonable  implication 
fettered  or  withdrew,  or  turned  over  to  the  corporation,  to 
any  extent  or  in  any  particular  the  control  held  by  the  state, 
at  the  passage  of  the  act,  of  navigation  or  the  waters  de- 
sired therefor.  There  was  no  language  in  it  which  would 
have  branded  as  illegal  or  unfair  whatever  action  concern- 
ing navigation  the  state  might  have  taken.  The  control 
of  navigable  waters,  if  alienable  at  all,  should  only  be  so  by 
an  instrument  showing  a  clear  and  undoubted  intention  on 

24  At.  p.  25. 


272  PAPERS  AND  ADDRESSES 

the  part  of  the  legislature  to  that  end.  The  act  in  this  re- 
gard was,  in  effect,  the  grant  of  such  land  under  the  water 
as  the  structures  approved  and  authorized  by  Congress  should 
cover,  and  of  the  right  to  use  for  a  water  power  such  surplus 
water  as  navigation  regulated  and  controlled  by  Congress 
should  not  require,  the  grant,  however,  to  have  and  take  no 
effect  until  Congress  had  acted  in  the  matter.  Whenever 
Congress  acted  in  the  matter,  it  drew  and  retained  unto  itself 
exclusive  and  paramount  control  over  the  navigation  and 
waters  of  the  river  for  that  purpose.  Thereafter  and  there- 
upon such  control  was  vested  exclusively  in  Congress,  by 
virtue,  not  of  the  act,  but  of  the  authority  delegated  by  the 
state  through  the  Federal  Constitution." 

Precisely  how  the  decision  in  the  Long  Sault  case 
will  affect  the  development  of  the  waterways  of  the 
state  for  power  and  navigation  purposes  it  is  difficult 
to  predict.  Future  legislation  may,  perhaps,  contain 
express  provisions  that  the  state  shall  retain  control 
of  navigation,  operating  the  locks  and  other  artificial 
devices  for  the  accommodation  of  shipping,  and  col- 
lecting any  tolls  charged  for  the  use  of  such  facilities. 
It  might  even  be  provided  that  the  state  authorities 
should  have  the  right,  whenever  they  were  of  the 
opinion  that  the  public  interest  required  it,  to  take 
possession  of  the  dams  and  power  plants  connected 
therewith  and  that  this  could  be  done  without  compen- 
sating the  corporation  which  had  constructed  them. 
By  such  restrictive  provisions  the  dangers  referred  to 
by  the  Court  of  Appeals  in  the  Long  Sault  decision 
would  be  avoided.  From  the  standpoint  of  the  public 
interest,  however,  the  important  question  is  how  far 
such  provisions  would  interfere  with  the  development 
of  rivers  for  power  and  navigation  purposes.  Cer- 
tain it  is  that  they  would  mark  a  change  in  the  policy 
of  this  state  during  the  last  thirty  years;  for  power 


CONTROL  OF  NAVIGABLE  WATERS     273 

companies  have,  during  that  period,  been  induced  to 
improve  at  large  cost  navigable  streams  because  of  the 
anticipated  profit  from  the  sale  of  water  or  electrical 
power.  Such  companies  can  hardly  be  expected  to 
continue  to  make  such  improvements  if  their  right  to 
have  the  beneficial  enjoyment  of  them  can  be  taken 
away  without  compensation;  and  under  such  circum- 
stances the  improvement  of  the  waterways,  whether 
for  the  development  of  power  or  the  improvement  of 
navigation,  would  have  to  be  undertaken  at  the  public 
expense.  Legislation  to  accomplish  that  result  is  now 
receiving  considerable  attention  from  the  people  of 
this  state.  Whether  under  the  power  given  by  such 
legislation  the  improvement  of  our  waterways,  if  made 
at  the  expense  of  the  public,  would  proceed  fast  enough 
to  keep  pace  with  the  modern  demands  of  commerce, 
and  whether  power  plants  could  be  profitably  or  ef- 
ficiently operated  by  the  state,  are  questions  of  state 
policy  as  to  which  opinions  will  differ  and  which  are 
beyond  the  scope  of  this  article.  In  the  case  of  the 
Long  Sault  project,  however,  it  is  inconceivable  that 
the  people  of  the  state  would  tolerate  the  expenditure 
of  any  considerable  sum  merely  to  improve  the  naviga- 
tion of  the  St.  Lawrence,  and  it  is  scarcely  more  prob- 
able that  they  would  approve  an  increase  of  the  debt 
of  the  state  by  the  enormous  sum  of  $35,000,000  in 
order  to  go  into  the  business  of  producing  water  power 
to  be  sold  to  the  industries  of  the  state.  It  seems  a 
safe  prediction  that  if  the  Long  Sault  project  is  not 
undertaken  as  a  private  enterprise,  it  will  never  be 
undertaken  at  all. 

How  far  power  projects  which  have  been  heretofore 
carried  out  under  authority  of  legislative  acts  (partic- 
ularly those  passed  since  1882),  and  have  involved  the 
use  of  navigable  or  potentially  navigable  streams,  may 


274  PAPERS  AND  ADDRESSES 

be  affected  by  the  Long  Sault  decision  because  the 
grants  have  expressly  or  by  implication  thrown  the 
control  of  navigation  into  the  hands  of  private  cor- 
porations, need  not  be  particularly  inquired  into. 
Suffice  it  to  say  that  the  decision  creates  doubt  as  to 
whether  some  of  the  grants  recently  made  which  are 
similar  in  character  to  that  made  to  the  Long  Sault 
Company,  may  not,  under  the  principle  announced  in 
the  decision  of  the  Court  of  Appeals,  be  made  the  sub- 
ject of  attack,  since  many  of  these  grants,  by  implica- 
tion no  less  strong  than  that  made  by  the  court  from 
the  Long  Sault  charter,  seem  to  have  conferred  upon 
the  grantees  control  of  navigation. 


THE  TOBACCO  TRUST  DECISIONS 


XII 
THE  TOBACCO  TRUST  DECISIONS  1 

The  decisions  of  the  Supreme  Court  of  the  United 
States  in  the  Tobacco  Trust  cases  2  mark  the  opening 
of  a  new  phase  in  the  enforcement  of  the  Interstate 
Commerce  and  the  Sherman  Anti-Trust  Law.  They 
also  set  at  rest  three  highly  interesting  and  important 
constitutional  questions  never  before  presented  to  the 
court. 

The  first  of  these  questions  relates  to  the  extent  and 
character  of  the  inquisitorial  power  of  a  grand  jury 
under  the  Fifth  Amendment  of  the  Constitution.  That 
amendment  provides  that  no  person  shall  be  held  to 
answer  for  an  infamous  crime  "unless  on  a  present- 
ment or  indictment  of  a  grand  jury. ' '  It  was  claimed 
that  by  this  provision  the  powers  of  a  grand  jury  were 
limited  to  those  possessed  by  that  body  under  the 
common  law,  and  that  it  could  only  act  after  a  bill  of 
indictment  had  been  submitted  to  it.  That  it  had 
power,  in  the  absence  of  a  specific  charge,  to  inquire 
whether  a  crime  had  been  committed  and,  if  so,  who 
committed  it,  was  vigorously  denied.  The  Supreme 
Court,  however,  unanimously  held  that,  under  the  prac- 
tice almost  universal  in  this  country  since  the  adoption 
of  the  Constitution,  a  grand  jury  has  broad  inquisito- 
rial powers,  and  that  upon  knowledge  acquired  either 
by  the  observations  of  its  members  or  by  the  evidence 
of  witnesses,  it  may  indict,  even  though  a  specific 
charge  against  a  particular  person  has  not  previously 
been  before  it.     Authority  is  thus  given  for  a  general 

i  Reprinted  from  the  Columbia  Law  Review  of  June,  100G. 
2  Hale   v.    Henkel   and  McAlister   v.    Henkel,   decided   by   the   United 
States  Supreme  Court,  March   12,  1906. 

277 


278  PAPERS  AND  ADDRESSES 

investigation  by  a  grand  jury  when  it  receives  infor- 
mation from  any  source  which  points  to  the  probability 
that  some  crime  has  been  committed,  even  though  the 
criminal  and  the  exact  circumstances  of  the  criminal 
act  are  not  known  either  to  the  prosecuting  officer  or  to 
the  grand  jury  itself. 

The  second  point  decided  by  the  court  is  that  an  offi- 
cer of  a  corporation  may  not,  in  its  behalf,  plead  a 
privilege  under  the  Fifth  Amendment  upon  the  ground 
that  his  answers  may  tend  to  incriminate  the  corpora- 
tion. This  conclusion  is  based  upon  the  view  that  the 
constitutional  privilege  against  self-incrimination  is 
personal  to  the  witness  and  may  not  be  asserted  in  be- 
half of  another.  It  was  also  decided  that  the  Immu- 
nity Act  of  1903  applied  to  a  proceeding  before  a  grand 
jury,  and  prevented  a  witness  from  asserting  the  privi- 
lege of  the  amendment  in  his  own  behalf,  the  act  afford- 
ing him  full  protection  from  prosecution  on  account  of 
anything  that  he  should  testify  to. 

The  remaining  point  settled  by  the  decisions  is  that 
the  production  by  an  officer  of  a  corporation,  under  a 
subpcena  duces  tecum,  of  documentary  evidence  belong- 
ing to  the  corporation  may  not  be  objected  to,  except  in 
case  of  an  abuse  of  the  writ,  either  on  the  ground  that 
under  the  Fifth  Amendment  such  evidence  would  tend 
to  incriminate  the  corporation,  or  that  under  the 
Fourth  Amendment  such  compulsory  production  would 
constitute  an  unreasonable  search  and  seizure  of  the 
effects  of  the  corporation.  It  was  said  in  support  of 
this  conclusion  that  there  is  a  reserved  right  in  the 
government  to  require  a  corporation  to  disclose 
whether  it  has  abused  its  privileges  and  franchises  en- 
joyed in  connection  with  commerce  among  the  several 
states. 

That  questions  like  these  have  not  been  decided  be- 


THE  TOBACCO  TRUST  DECISIONS     279 

fore  may  seem  strange ;  but  a  glance  at  the  history  of 
anti-trust  and  interstate  commerce  litigation  affords 
an  explanation. 

The  Interstate  Commerce  Law1  was  passed  in  1887 
and  the  Sherman  Law 2  in  1890,  and  since  they  went 
into  effect  there  have  been  comparatively  few  efforts 
to  enforce  the  criminal  remedies  which  they  prescribe. 
Both  Republican  and  Democratic  administrations  have 
generally  considered  it  sufficient  to  resort  only  to 
the  civil  remedy  of  injunction.  The  Sugar  Trust 
(Knight),3  the  Kansas  City  Stock  Yards,4  the  Addy- 
ston  Pipe,5  the  Trans-Missouri  Freight  Association,6 
the  Joint  Traffic  Association,7  and  the  Northern  Secu- 
rities cases  8  were  suits  for  injunctions  in  which  the 
court  had  to  consider  specific  and  easily  proven  agree- 
ments. In  none  of  those  cases  was  the  policy  of  sup- 
pressing the  facts  resorted  to  by  the  defendants,  for 
the  reason,  probably,  that  the  corporations  relied  upon 
the  contention  that,  even  conceding  that  they  had  made 
the  agreements,  they  were  not  in  violation  of  the  law. 
It  has  been  mainly  since  the  law  has  come  to  be  better 
understood  that  notable  instances  have  occurred  where 
great  corporations  have  resorted  to  obstructive  meas- 
ures which  would,  if  successful,  make  it  difficult  or 
impossible  to  procure  evidence  by  which  the  legality  of 
their  acts  may  be  tested.  Questions  like  those  in- 
volved in  the  Tobacco  Trust  cases  were  not  at  first  se- 
riously pressed. 

i  24  U.  S.  Stat,  at  Large  370. 
2  26  Ibid.  209. 

s  United  States  v.  Knight   (1895)    156  U.  S.  1. 

*  Catting  v.  Kansas  City  Stock  Yards  Company   (1901)    183  U.  S.  79. 
sAddyston  Pipe  and  Steel  Company  v.  United  States   (1899)    175  U. 
S.  211.  ' 

6  United   States   v.   Trans-Missouri    Freight   Association,    (1897)     166 
U.   S.   290. 

7  United  States  v.  Joint  Traffic  Association   (1898)    171  U.  S.  505. 

s  Northern  Securities  Company  v.  United  States  (1904)   193  U.  S.  197. 


280  PAPEBS  AND  ADDEESSES 

The  scope  and  effect  of  the  decisions  will  be  better 
understood  from  a  fuller  statement  of  the  facts  upon 
which  they  were  rendered,  and  of  the  views  expressed 
in  the  opinions  of  the  court. 

Licorice  is  an  indispensable  ingredient  in  the  manu- 
facture of  tobacco.  Its  importation  from  Syria  and 
the  Orient,  where  it  is  grown,  and  its  sale  in  this  coun- 
try are  under  the  control  of  the  MacAndrews  &  Forbes 
Company,  one  of  the  affiliated  companies  of  the  Ameri- 
can Tobacco  Company.  Independent  tobacco  manu- 
facturers assert  that  the  latter  company  fixes  for  them 
a  burdensome  price  and  limits  the  amount  which  they 
may  buy,  while  discriminating  in  favor  of  the  trust 
companies.  Under  these  conditions  the  price  of 
licorice  to  the  independent  manufacturers  has  about 
doubled.  The  government  sought  to  ascertain  from 
Mr.  Hale,  the  secretary  of  the  MacAndrews  &  Forbes 
Company,  whether  these  results  were  brought  about  by 
any  agreement,  combination  or  arrangement  in  viola- 
tion of  the  law.  He  refused  either  to  answer  ques- 
tions or  to  produce  the  books  and  documents  of  his 
company,  and  Circuit  Judge  Lacombe,  upon  a  pre- 
sentment by  the  grand  jury,  committed  him  for  con- 
tempt. Hale  obtained  a  writ  of  habeas  corpus,  and 
from  the  order  of  Judge  Wallace  discharging  the  writ, 
he  appealed  to  the  Supreme  Court. 

The  McAlister  case  presented  practically  the  same 
question  of  law  as  the  Hale  case.  McAlister  was  the 
secretary  of  the  American  Tobacco  Company.  The 
grand  jury  was  proceeding  against  that  company  and 
the  Imperial  Tobacco  Company,  which  is  a  company 
occupying  in  England  a  position  in  the  trade  similar 
to  that  of  the  American  Tobacco  Company  here.  The 
subpoena  required  the  production  of  certain  agreements 
made  in  1902,  which  allotted  to  the  British  Company 


THE  TOBACCO  TRUST  DECISIONS      281 

all  of  the  English  business  and  to  the  American  Com- 
pany all  of  the  American  business,  a  reservation  being 
made  that  the  British  Company  could  enter  the  Amer- 
ican field,  but  only  for  the  purpose  of  purchasing 
tobacco  leaf.  The  agreements  further  provided  that 
the  Imperial  Company  should  act  as  sole  agent  in 
England  of  the  American  Company  for  the  sale  of 
Havana  and  Porto  Rico  cigars  and  cigarettes  (subject 
to  the  significant  exception  "that  if  at  any  time  the 
prices  of  cigars  or  cigarettes  sold  to  any  country  not 
affecting  British  trade  shall  be  temporarily  reduced 
for  the  purposes  of  competition,  such  local  and  tempor- 
ary reduction  is  not  to  be  taken  into  account  for  the  pur- 
pose of  fixing  the  price  of  cigars  and  cigarettes  sold  to 
the  Imperial  Company"),  and  that  the  services  of  the 
Imperial  Company  as  agent  would  be  satisfactory  if  it 
should  sell  seventy-two  per  cent,  of  the  total  annual 
importations  into  the  United  Kingdom,  this  provision 
being  based  upon  the  "  belief  and  assumption  that  the 
American  Company  and  its  affiliated  companies  control, 
or  will  shortly  control,  not  less  than  eighty  per  cent, 
of  the  aforesaid  annual  importations." 

Counsel  for  Hale  and  McAlister  contended,  as  al- 
ready stated,  that  an  officer  of  a  corporation  could  as- 
sert, in  behalf  of  the  corporation,  the  privilege  under 
the  Fifth  Amendment.  On  the  other  hand,  the  govern- 
ment claimed  that  the  historical  origin  of  that  amend- 
ment shows  that  it  was  only  designed  to  save  a  witness 
from  being  placed  at  a  disadvantage  on  the  witness 
stand  through  confusion  or  ignorance  or  anxiety,  and 
from  being  thus  led  to  make  ambiguous  or  suspicious 
statements ;  that  the  rule  was  adopted  to  avoid  the  de- 
moralizing effect  on  the  administration  of  justice  of  a 
resort  to  browbeating  and  abuse,  and,  perhaps,  to  some 
form  of  torture;  that  the  immunity  was  designed  to 


282  PAPERS  AND  ADDRESSES 

encourage  persons  to  come  forward  and  volunteer  their 
testimony;  and,  finally,  that  none  of  these  considera- 
tions made  it  appropriate  to  apply  the  rule  for  the 
benefit  of  a  corporation.  Adopting  this  view  the 
Supreme  Court  held  that ' '  the  right  of  a  person  under 
the  Fifth  Amendment  to  refuse  to  incriminate  himself 
is  purely  a  personal  privilege  of  the  witness.  .  .  .  The 
question  whether  a  corporation  is  a  'person'  within  the 
meaning  of  this  amendment  really  does  not  arise,  ex- 
cept, perhaps,  where  a  corporation  is  called  upon  to 
answer  a  bill  of  discovery,  since  it  can  only  be  heard  by 
oral  evidence  in  the  person  of  some  of  its  agents  or 
employees.  The  amendment  is  limited  to  a  person 
who  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself,  and  if  he  cannot  set  up  the 
privilege  of  a  third  person,  he  certainly  cannot  set  up 
the  privilege  of  a  corporation. ' ' 

This  view  of  the  court  is  in  accord  with  the  tendency 
of  modern  judicial  opinion.  Chief  Justice  Appleton, 
speaking  of  the  privilege,  said  that  "the  interests  of 
justice  would  be  little  promoted  by  its  enlargement." 
Judge  Thompson  said  still  more  emphatically  "But 
such  a  maxim  has  no  place  in  an  enlightened  and 
humane  system  of  jurisprudence.  We  have  outgrown 
it."  And  Professor  Wigmore,  in  his  admirable  treat- 
ise upon  the  law  of  evidence,  speaking  of  the  privilege, 
said: 

"We  are  to  respect  it  rationally  for  its  merits,  not  wor- 
ship it  blindly  as  a  fetish.  .  .  .  Indirectly  and  ultimately  it 
works  for  good — for  the  good  of  the  innocent  accused  and  of 
the  community  at  large.  But  directly  and  concretely  it  works 
for  ill — for  the  protection  of  the  guilty  and  the  consequent 
derangement  of  civic  order. ' ' x 

13  Wigmore  on  Evidence  3101. 


THE  TOBACCO  TRUST  DECISIONS      283 

And  again  the  same  author  says : 

"To  invoke  the  sentiments  of  lofty  indignation  and  of 
courageous  self-respect  against  the  arbitrary  methods  of  royal 
tyrants  and  religious  bigots,  holding  an  inquisition  to  enforce 
cruel  decrees  of  the  prerogative,  and  torturing  their  victims 
with  rack  and  stake,  is  fitting  and  laudable,  and  moves  men 
with  a  just  sympathy.  But  to  apply  the  same  terms  to  the 
orderly,  everyday  processes  of  the  witness  stand,  in  a  com- 
munity governing  itself  in  freedom  by  the  will  of  the  majority 
and  having  on  its  statute  book  no  law  which  was  not  put  there 
by  itself  and  cannot  be  repealed  to-morrow — a  community, 
moreover,  cursed  above  others,  by  constant  evasion  of  the 
law  and  by  overlaxity  of  criminal  procedure — this  is  to  mal- 
treat language,  to  enervate  virile  ideas,  to  abuse  true  senti- 
ment, to  degrade  the  Constitution,  and  to  make  hopeless  the 
correct  adjustment  of  the  best  motives  of  human  nature  to  the 
facts  of  life."1 

The  remaining  question  decided  by  the  court,  viz., 
whether  the  Fourth  Amendment,  prohibiting  "unrea- 
sonable searches  and  seizures,"  could  be  availed  of  by 
a  corporation  through  one  of  its  officers  commanded 
by  a  subpoena  duces  tecum  to  produce  its  papers  and 
documents,  recalls  two  of  the  most  interesting  crises 
in  the  events  leading  to  the  establishment  of  the  prin- 
ciples of  Anglo-Saxon  liberty.  The  famous  Wilkes 
agitation  was  aimed  at  the  practice  whereby  the  Secre- 
tary of  State,  an  officer  of  the  English  crown,  assumed 
to  issue  general  warrants  to  search  the  premises  of 
persons  suspected  of  criminal  libel  for  the  purpose  of 
discovering  evidence.  The  decision  of  Lord  Camden, 
in  Entinck  v.  Carrington,2  denounced  such  warrants 
as  in  violation  of  the  principles  of  English  constitu- 
tional law.    At  about  the  same  time  a  similar  agitation 

i  Ibid.  3107. 

2  (1705)    19  State  Trials  1030. 


284  PAPERS  AND  ADDRESSES 

arose  in  Massachusetts  in  opposition  to  the  issuance  by 
the  courts  of  writs  of  assistance  to  custom-house  officers 
enabling  them  to  search  suspected  places  for  smuggled 
goods.  It  was  in  Paxton's  Case1  that  Otis  delivered 
his  famous  speech  in  opposition  to  such  writs,  and  the 
insistence  of  the  crown  upon  their  validity  was  one 
of  the  principal  grounds  of  complaint  by  the  colonists 
against  the  rule  of  Great  Britain  in  this  country.  The 
Fourth  Amendment  is  an  embodiment  of  the  principles 
established  in  England  in  Entinck  v.  Carrington,  and 
in  this  country  by  the  Revolution. 

It  was  contended  by  the  government  in  the  tobacco 
cases  that  the  principle  underlying  the  Fourth  Amend- 
ment did  not  limit  the  power  of  the  judiciary,  proceed- 
ing in  the  ordinary  way  through  a  writ  of  subpoena 
duces  tecum,  to  compel  the  production  in  court  of 
documentary  evidence,  that  writ  having  existed  from 
time  immemorial  in  England  and  long  before  the  gen- 
eral warrants  denounced  in  the  Wilkes  case  had  come 
into  use.  Without  such  writs,  as  was  said  in  a  leading 
case,  it  would  be  "utterly  impossible  to  carry  on  the 
administration  of  justice."  The  Supreme  Court 
adopted  that  view.  But  it  went  still  further  and  held 
that  in  respect  of  the  production  of  books  and  papers 
in  court  there  was  a  clear  distinction  "between  an  in- 
dividual and  a  corporation  and  that  the  latter  has  no 
right  to  refuse  to  submit  its  books  and  papers  for  an 
examination  at  the  suit  of  the  state.  The  individual 
may  stand  upon  his  constitutional  rights  as  a  citizen. 
He  is  entitled  to  carry  on  his  private  business  in  his 
own  way.  His  power  to  contract  is  unlimited.  He 
owes  no  duty  to  the  state  or  to  his  neighbors  to 
divulge  his  business,  or  to  open  his  doors  to  an  in- 
vestigation, so  far  as  it  may  tend  to  criminate  him. 

i  (1761)  Quincy's  Mass.  Reports  51  and  Appendix  395. 


THE  TOBACCO  TRUST  DECISIONS      285 

He  owes  no  such  duty  to  the  state,  since  he  receives 
nothing  therefrom,  beyond  the  protection  of  his  life  and 
property.  .  .  . 

1 '  Upon  the  other  hand,  the  corporation  is  a  creature 
of  the  state.  It  is  to  be  presumed  to  be  incorporated 
for  the  benefit  of  the  public.  It  receives  certain  spe- 
cial privileges  and  franchises,  and  holds  them  subject 
to  the  laws  of  the  state  and  the  limitations  of  its 
charter.  Its  powers  are  limited  by  law.  It  can  make 
no  contract  not  authorized  by  its  charter.  Its  rights 
to  act  as  a  corporation  are  only  preserved  to  it  so  long 
as  it  obeys  the  laws  of  its  creation.  There  is  a  re- 
served right  in  the  legislature  to  investigate  its  con- 
tracts and  find  out  whether  it  has  exceeded  its  powers. 
It  would  be  a  strange  anomaly  to  hold  that  a  state, 
having  chartered  a  corporation  to  make  use  of  certain 
franchises,  could  not  in  the  exercise  of  its  sovereignty 
inquire  how  these  franchises  had  been  employed,  and 
whether  they  had  been  abused,  and  demand  the  produc- 
tion of  the  corporate  books  and  papers  for  that  pur- 
pose. .  .  .  While  an  individual  may  lawfully  refuse  to 
answer  incriminating  questions  unless  protected  by  an 
immunity  statute,  it  does  not  follow  that  a  corporation, 
vested  with  special  privileges  and  franchises,  may  re- 
fuse to  show  its  hand  when  charged  with  an  abuse  of 
such  privileges."  The  court  further  held  that  while 
the  franchises  of  a  corporation  might  be  derived  under 
the  laws  of  one  of  the  states,  yet  such  franchises  were 
to  be  exercised  in  subordination  to  the  power  of  Con- 
gress to  regulate  commerce,  and  added: 

"In  respect  to  this,  the  general  government  may  also  assert 
a  sovereign  authority  to  ascertain  whether  such  franchises 
have  been  exercised  in  a  lawful  manner,  with  due  regard  to 
its  own  laws.  Being  subject  to  this  dual  sovereignty,  the 
general  government  possesses  the  same  right  to  see  that  its  own 


286  PAPERS  AND  ADDRESSES 

laws  are  respected  as  the  state  would  have  with  respect  to  the 
special  franchises  vested  in  it  by  the  laws  of  the  state." 

The  court  said  that  it  did  not  intend  to  intimate  that 
the  general  government  "has  a  general  visitatorial 
power  over  state  corporations,"  but  added  that  it  did 
not  wish  to  be  understood  "as  holding  that  an  examina- 
tion of  the  books  of  a  corporation,  if  duly  authorized 
by  act  of  Congress,  would  constitute  an  unreasonable 
search  and  seizure  within  the  Fourth  Amendment." 

Mr.  Justice  Harlan  and  Mr.  Justice  McKenna  con- 
curred in  the  opinion  of  the  majority  of  the  court,  but 
held  that  the  protection  of  the  Fourth  Amendment  did 
not  extend  to  corporations  in  any  case  and  also  ex- 
pressed somewhat  different  views  of  the  question 
whether  the  subpoena  duces  tecum  in  the  Hale  case  wras 
too  broad  and  indefinite. 

Mr.  Justice  Brewrer  wrote  a  dissenting  opinion  in 
which  the  Chief  Justice  concurred.  These  justices  held 
that  the  immunities  and  protection  of  Articles  Fourth, 
Fifth  and  Fourteenth  of  the  Amendments  to  the  Fed- 
eral Constitution  are  available  to  a  corporation  "so 
far  as  in  the  nature  of  things  they  are  applicable,"  al- 
though they  agreed  with  the  majority  of  the  court  that 
the  protection  accorded  by  the  Fifth  Amendment  is 
personal  to  the  individual  and  does  not  extend  "to  an 
agent  of  an  individual  or  justify  such  agent  in  refusing 
to  give  testimony  incriminating  his  principal."  But 
Justice  Brewer  referred  to  the  cases  holding  that  the 
word  "person"  used  in  the  Fourteenth  Amendment  in- 
cluded corporations  and  concluded  that  it  must  also 
include  "corporations  when  used  in  the  Fourth  and 
Fifth  Amendments."  The  dissenting  justices  also 
held  that  while  a  power  of  supervision  of  a  corporation 
did  exist,  yet  it  belonged  solely  to  the  state  by  which 


THE  TOBACCO  TRUST  DECISIONS      287 

it  was  chartered  and  that  in  such  case  the  national  gov- 
ernment had  no  power  of  supervision  or  investigation. 

The  court  has  never  before  had  occasion  to  express 
its  opinion  upon  the  question  thus  decided.  It  has 
always  been  supposed  that  Congress  could,  under  the 
commerce  clause  of  the  Constitution,  require  corpora- 
tions to  comply  with  statutory  regulations  as  condi- 
tions precedent  to  their  engaging  in  interstate  trade, 
as,  for  instance,  that  they  should  subject  their  books 
and  papers  relative  to  interstate  trade  to  examination 
by  an  administrative  officer  of  the  government.  But 
it  has  never  before  been  decided  that  the  fact  that  a 
corporation  has,  without  an  express  franchise  from  the 
national  government,  engaged  in  trade  among  the 
states,  imposes  upon  it  an  obligation  in  a  judicial  pro- 
ceeding different  from  that  resting  upon  an  individual 
in  similar  circumstances  to  disclose  its  affairs.  The 
importance  and  far-reaching  effect  of  the  decision  can- 
not be  overestimated  and  it  must  inevitably  result  in 
making  the  subjection  of  state  corporations  engaged  in 
interstate  trade  to  the  authority  of  the  national  gov- 
ernment much  more  complete  than  it  has  hitherto  been. 

A  matter  of  great  interest  from  the  legal  and  histor- 
ical standpoint  is  revived  by  the  reference  of  the  court 
to  the  famous  opinion  of  Mr.  Justice  Bradley  in  the 
Boyd x  case.  In  that  case  the  federal  government 
sought  to  obtain  certain  documentary  evidence  in  a 
suit  to  recover  a  penalty  under  the  revenue  law,  which 
provided  that  the  court  on  motion  of  the  government's 
attorney  should  have  power  to  require  the  defendant 
to  produce  in  court  his  private  books,  invoices  and 
papers,  and  that  on  failure  so  to  do  the  allegations  of 
the  government's  attorney  should  be  taken  as  con- 
fessed.    Justice  Bradley  held  that  this  constituted  an 

i  Boyd  v.  The  United  States  (1885)   11G  U.  S.  616. 


288  PAPERS  AND  ADDRESSES 

unreasonable  search  and  seizure  in  violation  of  the 
Fourth  Amendment  and  was  also  in  violation  of  the 
Fifth  Amendment  in  that  it  compelled  a  person  to  be 
a  witness  against  himself  in  a  criminal  case.  It  was 
not  necessary  for  the  decision  of  the  case  to  hold  more 
than  that  there  had  been  a  violation  of  the  privilege  of 
the  Fifth  Amendment ;  and  upon  this  ground  alone  Mr. 
Justice  Miller  and  Chief  Justice  Waite  concurred  in 
the  judgment  of  the  court.  Justice  Bradley,  however, 
said  that  the  two  amendments  "run  almost  into  each 
other"  and  that  they  ''throw  great  light  on  each  other. 
For  the  'unreasonable  searches  and  seizures'  con- 
demned in  the  Fourth  Amendment  are  almost  always 
made  for  the  purpose  of  compelling  a  man  to  give  evi- 
dence against  himself,  which  in  criminal  cases  is  con- 
demned in  the  Fifth  Amendment.  .  .  .  And  we  have 
been  unable  to  perceive  that  the  seizure  of  a  man's 
private  books  and  papers  to  be  used  in  evidence  against 
him  is  substantially  different  from  compelling  him  to 
be  a  witness  against  himself." 

But  as  has  been  pointed  out  before,  the  Fourth  and 
the  Fifth  Amendments  had  entirely  different  historical 
origins.  The  protection  of  the  Fifth  Amendment  is 
complete  without  any  resort  to  the  Fourth  Amendment. 
It  had  been  recognized  at  least  a  century  before  the 
occasion  arose  for  the  principle  of  the  Fourth  Amend- 
ment. Wilkes  was  obliged  to  resort  to  the  law  against 
unlawful  searches  and  seizures  only  because,  as  the  in- 
criminating documents  had  been  taken  from  his  posses- 
sion, he  was  given  no  opportunity  as  a  witness  to  ob- 
ject to  their  use  as  being  in  violation  of  his  privilege 
against  incrimination.  Furthermore,  the  seizure  of 
the  papers  in  the  Wilkes  case  was  not  under  an  order 
of  the  court,  but  under  executive  authority.    In  the 


THE  TOBACCO  TRUST  DECISIONS      289 

Boyd  case,  however,  the  statute  without  compelling  the 
production  of  the  papers  declared  that  the  failure  to 
produce  them  should  create  a  conclusive  presumption 
of  guilt.  This  was  clearly  in  violation  of  the  Fifth 
Amendment.  But  there  was  no  reason  for  resorting  to 
the  Fourth  Amendment,  or,  in  the  words  of  Professor 
Wigmore,  attempting  "to  wrest  the  Fourth  Amend- 
ment to  the  aid  of  the  Fifth."  Justice  Bradley  in 
effect  rested  his  conclusion  upon  the  proposition  that 
objection  to  the  admission  of  evidence  could  be  based 
upon  the  illegal  method  by  which  it  was  obtained.  But 
the  Supreme  Court  has  since  decided  the  contrary.1 
Nor  is  the  motive  with  which  illegal  evidence  is  ob- 
tained a  ground  of  objection.  In  the  Wilkes  case  the 
motive  was  no  doubt  to  obtain  incriminating  evidence, 
but  the  illegal  act  was  committed  before  the  evidence 
was  offered  in  court.  As  is  said  in  May's  "Constitu- 
tional History  of  England,"  the  objection  was  that  the 
ministers  of  the  crown  did  not  wait  "to  inquire  after 
the  accustomed  forms  of  law. ' '  Often,  if  not  generally, 
a  warrant  of  search  or  seizure  is  for  the  very  purpose 
of  obtaining  incriminating  evidence.  The  Fourth 
Amendment  recognizes  that  such  a  search  and  seizure 
may  be  reasonable  and  lawful. 

The  two  amendments,  then,  do  not  "run  almost  into 
each  other,"  nor  does  the  one  amendment  throw  light 
upon  the  other.  The  Fourth  Amendment  does  not  help 
out  the  Fifth  Amendment  merely  because  a  search  or 
seizure  which  is  unreasonable  is  declared  to  be  un- 
lawful, nor  does  the  Fifth  Amendment  help  out  the 
Fourth  Amendment  by  permitting  the  search  or  seizure 
to  be  declared  unreasonable  upon  the  grounds  of  in- 
crimination.    The  contrary  expressions  in  the  Boyd 

i  Adams  v.  New  York    (1903)    192  U.  S.  585. 


290  PAPERS  AND  ADDRESSES 

case  were  not  necessary  to  the  decision  of  that  case. 

Furthermore,  in  the  Baird  case,1  which  was  not  very 
different  in  its  facts  from  the  Hale  case  and  where  the 
objection  was  urged  that  an  officer  of  a  corporation 
should  not  be  required  to  produce  the  books  of  the 
corporation,  the  court  said  that  "the  testimony  given 
under  such  circumstances  presents  scarcely  a  sugges- 
tion of  an  unreasonable  search  or  seizure.'' 

The  decisions  in  the  Adams  case  and  the  Baird  case 
thus  seem  to  make  the  decision  in  the  Boyd  case  rest 
alone  upon  the  Fifth  Amendment  and  prevent  the  ex- 
tension of  the  Fourth  Amendment  beyond  the  limits 
justified  by  its  historical  and  political  origin. 

These  views  were  urged  upon  the  Supreme  Court  in 
the  Hale  and  McAlister  cases  in  the  expectation  that 
some  definite  limits  might  be  placed  upon  the  Boyd  de- 
cision. But  while  the  court  quotes  Judge  Bradley's 
language,  in  which  he  says  that  the  two  amendments 
are  interdependent,  it  does  not  distinctly  say  whether 
his  view  is  still  adhered  to.  It  does,  however,  use  this 
significant  language:  "Subsequent  cases  (Adams  and 
Baird)  treat  the  Fourth  and  Fifth  Amendments  as 
quite  distinct,  having  different  histories,  and  perform- 
ing separate  functions."  It  would  have  done  much  to 
clear  the  atmosphere  if  the  court  had  distinctly  said 
that  the  language  of  the  Boyd  case  as  to  the  relation 
between  the  Fourth  and  the  Fifth  Amendment  should 
be  regarded  as  obiter.  So  long  as  the  court  continues 
to  render  such  decisions  as  those  in  the  Adams,  Baird 
and  Hale  cases,  and  the  broad  language  of  the  Boyd 
case  is  allowed  to  stand  only  as  a  piece  of  judicial 
rhetoric,  no  serious  harm  will  be  done.  But  to  permit 
the  words  of  a  learned  and  eminent  jurist  like  Mr. 
Justice  Bradley  to  remain  without  express  limitation 

i  Interstate  Commerce  Commission  v.  Baird  (1904)  194  U.  S.  25. 


THE  TOBACCO  TRUST  DECISIONS      291 

is  a  source  of  embarrassment  to  the  lower  courts  and 
their  litigants,  which  is  unfortunate  and  which  might  be 
easily  removed. 

The  decisions  in  the  Hale  and  McAlister  cases  have 
placed  in  the  hands  of  the  government  a  potent  weapon 
to  compel  obedience  to  the  law.  How  it  shall  be  used 
will  largely  depend  upon  the  attitude  of  the  trusts 
themselves.  A  just  and  wise  enforcement  of  the  com- 
merce laws  did  not  require  an  immediate  resort  to  crim- 
inal remedies,  and  circumstances  may  still  exist  where 
the  policy  of  the  law  may  be  effectively  carried  out  by 
means  of  injunctive  relief.  The  commerce  laws  deal 
with  a  regulation  of  interstate  trade  entirely  new  a 
generation  ago.  Business  dealings  which  had  before 
been  regarded  as  justifiable  both  in  morals  and  law, 
became  in  a  day  mala  proliibita.  Multitudes  of  trans- 
actions, which  had  not  been  in  their  general  effect  in- 
jurious to  trade,  were  declared  to  be  illegal,  not  because 
they  were  intrinsically  immoral,  or  even  under  ordinary 
conditions  in  violation  of  wise  economic  principles,  but 
because  they  enabled  powerful  corporations,  by  the 
aggregation  of  an  immense  amount  of  capital,  to  op- 
press, and  ultimately  to  exterminate,  the  less  powerful. 
It  was  a  serious  matter  to  prohibit  by  law  methods  of 
business  which  had  prevailed  for  many  years ;  and  the 
immediate  and  drastic  enforcement  of  such  a  law,  a 
reasonable  public  opinion  would  neither  have  demand- 
ed nor  tolerated.  It  has  taken  years  to  establish  the 
principles  upon  which  it  must  be  determined  what  con- 
stitutes a  combination  in  restraint  of  interstate  trade 
which  is  prohibited  by  the  commerce  acts.  But  they 
are  now  so  far  settled  that  little  excuse  will  hereafter  be 
afforded  to  a  person  or  corporation  for  pleading  ignor- 
ance of  them;  and  there  can  be  no  complaint  of  hard- 
ship if,  for  violations  of  the  law  in  clear  cases,  criminal 


292  PAPERS  AND  ADDRESSES 

penalties  should  be  rigorously  imposed.  It  is  undoubt- 
edly the  fact  that  a  large  number  of  great  corporations 
have  in  good  faith  obeyed  the  law  as  its  scope  and 
meaning  have  come  to  be  understood,  and  it  is  to  be 
hoped  that  those  which  still  stubbornly  resist  its  en- 
forcement will  finally  submit  to  a  legislative  policy 
which  is  undoubtedly  sanctioned  by  an  almost  universal 
public  opinion.  But  if  they  do  not,  and  if  they  continue 
to  withhold  information  as  to  their  transactions,  they 
must  expect  that  such  conduct  will  be  accepted  as  proof 
that  they  propose  still  to  defy  the  law.  The  import- 
ance of  the  tobacco  trust  decisions  to  defeat  any  such 
disloyal  policy  can  hardly  be  over-estimated. 

It  cannot  be  assumed  that  the  decisions  will  remove 
all  difficulties  in  enforcing  the  law.  It  is  not  probable 
that  corporations  will  any  longer  incur  the  risk  of 
making  formal  written  agreements  which  are  unlawful ; 
but  if  they  are  determined  to  defy  the  law  they  will 
probably  resort  to  more  obscure  and  ingenious  exped- 
ients. Evidence  of  such  devices  may  not  be  easy  to 
secure ;  yet  the  difficulty  has  now  been  greatly  lessened. 
If  the  trusts  are  still  able  to  avoid  a  disclosure  of  their 
affairs,  it  may  be  that  some  appropriate  legislation  may 
be  necessary  by  which  they  shall  not  be  permitted  to 
engage  in  interstate  trade  except  upon  the  condition 
that  their  affairs  shall  be  subjected  to  such  visitatorial 
power  on  the  part  of  the  administrative  branch  of  the 
government  as  may  be  necessary  to  discover  from  time 
to  time  whether  they  are  obeying  the  law.  Whether 
public  opinion  will  demand  the  enactment  of  such  a 
law  largely  depends  upon  the  future  conduct  of  corpor- 
ations in  withholding  information  and  in  resisting  the 
efforts  of  the  Department  of  Justice  to  compel  obedi- 
ence to  the  law. 


ADDRESS  AT  THE  ANNUAL  DINNER  OF  THE 
NEW  YORK  STATE  BAR  ASSOCIATION,  1919 


XIII 

ADDRESS  AT  THE  ANNUAL  DINNER  OF  THE 
NEW  YORK  STATE  BAR  ASSOCIATION,  1919 

REMARKS    OF    HENRY    W.    TAFT  X 

Mr.  President  and  Ladies  and  Gentlemen  :  I  have 
a  deep  sense  of  my  unworthiness  to  preside  over  this 
great  organization.  Your  own  distinction,  Judge 
Hughes,  at  the  bar,  in  executive  office,  on  the  bench  and 
in  the  public  life  of  our  country,  has  been  so  notable 
that  the  Association  enhanced  its  own  importance  in 
selecting  you  as  its  president.  I  have  no  such  basis 
for  the  distinguished  honor  conferred  upon  me,  and  I 
can  only  hope,  by  devotion  to  the  interests  of  the  asso- 
ciation, to  compensate  in  some  small  measure  for  the 
advantage  of  having  as  its  presiding  officer  a  great 
public  figure  like  yourself. 

As  Chairman  of  the  Committee  on  Law  Reform  it  has 
been  my  duty  to  examine  numerous  projects  for  the  re- 
form of  the  law,  and  when  I  contemplate  the  oppor- 
tunities thus  presented  for  alluring  experimentation,  I 
am  amazed  at  the  moderation  of  my  recommendations. 
The  vexed  subject  of  procedure  has  also  fallen  to  my 
lot,  and  I  have  made  some  effort  to  clear  away  the 
underbrush  obstructing  the  pathway  to  legal  rights. 
So  I  have  had  the  opportunity  for  making  trouble,  and 
I  am  not  sure  that  the  nominating  committee  did  not 
conclude  that  the  best  way  to  avoid  complications  was 
by  a  diplomatic  promotion. 

The  achievements  of  the  bar  during  the  war  have 
been  noteworthy.  The  fact  that  thirty  per  cent,  of  the 
lawyers  of  the  country  between  twenty-one  and  thirty- 

i  Delivered  at  the  Forty-second  annual  meeting  held  in  New  York  City 
January  18,  1919. 

295 


296  PAPERS  AND  ADDRESSES 

one  years  of  age  were  actually  inducted  into  the  army 
— a  proportion  far  greater  than  that  in  any  other  occu- 
pation— gives  testimony  of  their  patriotism ;  while  the 
most  heroic  individual  episode  of  the  war  is  that  of  the 
Lost  Battalion  in  the  Argonne  Forest,  led  by  a  modest 
young  lawyer  of  this  city — Colonel  Whittlesey.  Such 
things  show  that  the  pursuit  of  our  learned  profession 
does  not  subdue  the  promptings  of  a  high  patriotism 
or  the  will  to  make  even  the  supreme  sacrifice. 

A  British  publicist  has  recently  said  that  one  of  the 
miracles  of  the  war  was  the  raising  of  an  army  of  over 
three  millions  of  men  in  America.  The  raising  of  this 
army  by  enforced  draft  was  due  entirely  to  American 
initiative.  One  of  the  fundamental  duties  of  citizen- 
ship in  a  democracy  is  by  serving  as  a  soldier  to  aid  in 
preserving  the  principles  on  which  such  a  government 
is  founded.  This  principle  was  embodied  with  the 
broadest  vision  in  the  Selective  Service  Law  and  it  was 
carried  out  with  no  internal  disturbance  and  with  the 
least  possible  impairment  of  the  industrial  forces  of 
the  country.  This  truly  wonderful  achievement  re- 
quired the  intuition  and  training  of  the  soldier,  the 
broad  vision  of  a  constructive  statesman,  and  the  pro- 
fessional skill  of  a  trained  lawyer,  and  the  man  was 
found  in  the  great  lawyer-soldier,  Major  General  Enoch 
Ii.  Crowder,  the  Provost  Marshal  General.  His  serv- 
ices in  making  the  United  States  a  potent  factor  in  the 
winning  of  the  war  may  fairly  be  ranked  with  the 
achievements  of  General  Pershing  himself. 

It  was  General  Crowder 's  foresight  that  brought  the 
legal  profession  to  the  aid  of  the  government.  In  the 
complicated  machinery  of  the  Selective  Service  plan  he 
assigned  to  each  member  of  the  bar  what  he  called  "a 
definite  place  and  duty  in  the  winning  of  the  war." 
Out  of  131,909  lawyers  in  this  country,  125,100  re- 


STATE  BAR  ASSOCIATION,  1919         297 

sponded  to  his  call.  Never  before  was  such  an  oppor- 
tunity offered  to  lawyers  to  render  service  for  which, 
by  education  and  training,  they  were  especially  fitted ; 
and  they  rendered  it  patriotically  and  without  reward 
other  than  the  satisfaction  of  a  duty  well  performed. 
As  in  the  days  of  the  Roman  Republic,  members  of 
the  noblest  families  trained  to  the  law  gave  free  advice 
to  the  people  in  the  Forum,  so  twenty  centuries  later 
the  American  bar  has  placed  its  services  at  the  disposal 
of  the  people  of  this  country  in  the  task  of  building  up 
an  army  to  preserve  modern  civilization. 

What  public  service  remains  for  the  American  law- 
yer? In  a  crisis  like  that  of  to-day  the  highest  concep- 
tion of  professional  duty  requires  the  lawyer  to  con- 
tribute to  the  thought  of  the  country  upon  questions  of 
public  policy,  for  they  are  indissolubly  linked  with  the 
subjects  of  his  study  and  of  his  practice.  President 
Wilson  once  very  truly  said  that : 

"The  notable,  I  had  almost  said  fundamental,  circum- 
stance of  our  political  life  is  that  our  courts  are,  under  our 
constitutional  system,  the  means  of  our  political  development. 
Every  change  in  our  law,  every  modification  of  political  prac- 
tice, must  sooner  or  later  pass  under  their  scrutiny.  We  can 
go  only  as  fast  as  the  legal  habit  of  mind  of  our  lawyers  will 
permit.  Our  politics  are  bound  up  in  the  mental  character 
and  attitude  and  in  the  intellectual  vigor  and  vision  of  our 
lawyers.  Ours  is  so  intensely  and  characteristically  a  legal 
polity  that  our  politics  depend  upon  our  lawyers.  They  are 
the  ultimate  instruments  of  our  life." 

But  James  Bryce  has  noted,  and  we  all  know  how 
truly,  the  decline  of  the  bar  as  a  social  influence,  on  ac- 
count of  its  ''diminished  political  authority."  This 
condition  bodes  no  good  for  our  country.  Never  has 
there  been  a  greater  need  for  the  exercise  of  the  highest 
function  of  the  American  lawyer.     Never  before  has  it 


298  PAPERS  AND  ADDRESSES 

been  so  necessary  that  he  should  think  in  terms  of 
statesmanship  and  should  stimulate  the  thought  of 
others  upon  the  great  questions  of  the  day.  Never 
before  that  he  should  be  in  the  highest  places  in  the 
legislative  and  executive  branches  of  our  government. 
In  the  process  of  adjusting  itself  to  peace  conditions, 
the  country  must,  as  never  before,  concern  itself  with 
its  international  relations,  and  it  must  guard  at  home 
against  any  impairment  of  the  liberty  of  the  citizen. 
It  must  adjust  the  relations  between  the  government 
and  the  transportation  companies.  It  must  reconsider 
the  whole  subject  of  combinations  in  restraint  of  trade. 
It  must  adopt  a  fiscal  policy  adapted  to  the  enormous 
financial  burden  cast  upon  us  by  the  war.  It  must 
bring  the  rights  of  labor  and  those  of  capital  into 
equilibrium.  It  must  guard  our  institutions  against 
the  menace  of  Bolshevism.  And  it  must  preserve  the 
authority  of  our  courts  against  the  invasion  of  novel 
and  destructive  theories. 

To  the  extent  that  lawyers  aid  unselfishly  and  effect- 
ively in  the  solution  of  such  great  problems  as  these, 
to  that  extent,  and  to  that  extent  only,  will  they  place 
themselves  in  the  position  of  influence  which  the  bar 
occupied  in  the  first  half  of  the  history  of  the  nation. 
But  they  must  move  out  of  the  atmosphere  of  private 
interests  and  not  let  their  opinions  on  public  questions 
be  fettered  by  the  pecuniary  interests  of  their  clients, 
or  confine  their  thoughts  as  citizens  upon  great  consti- 
tutional questions  of  the  day  within  the  narrow  channel 
of  personal  interest.  Above  all  things  they  must  have 
courage  and  initiative.  They  must  not  only  contribute 
to  the  discussion,  but  they  must  lead  in  a  constructive 
way.  If  they  do  this,  they  may  again  find  themselves 
the  most  influential  element  for  good  in  our  body 
politic. 


PRESIDENT'S    ADDRESS    AT    THE    ANNUAL 

DINNER    OF    THE    NEW   YORK    STATE 

BAR  ASSOCIATION,  JANUARY  17,  1920 


XIV 

PRESIDENT'S    ADDRESS    AT    THE    ANNUAL 

DINNER    OF    THE    NEW   YORK    STATE 

BAR  ASSOCIATION,  JANUARY  17,  1920 

Gentlemen  of  the  Bar  Association  and  Our  Guests  : 
I  first  wish  to  express  my  high  appreciation  of  the 
honor  of  being  your  president.  I  have  valued  the 
distinction  and  the  opportunities  of  the  office.  I  lay  it 
down  with  a  higher  idea  of  the  usefulness  and  the  possi- 
bilities of  the  Association. 

To  our  guests  we  extend  a  warm  welcome.  I  espec- 
ially greet  the  ladies.  The  solace  of  having  them  at 
our  side  we  know.  We  men  are  now  concerned  lest  we 
may  not  get  them  on  our  side. 

The  times  are  full  of  matters  of  interest  to  lawyers. 
Some  we  mention  with  hesitation. 

Last  year  we  debated  the  League  of  Nations,  and,  as 
Judge  Hughes  said  at  our  last  dinner,  "no  fatality  re- 
sulted." I  am  not  sure  that  a  debate  now  would  be 
equally  free  from  casualties. 

Another  condition  I  forbear  to  enlarge  upon.  Our 
friend  Mr.  Wadhams,  usually  optimistic,  feared  that  it 
might  have  a  withering  effect  upon  the  joy  of  this  oc- 
casion. Your  numbers,  however,  belie  his  forebodings. 
Perhaps  it  is  because  lawyers  believe  as  Wordsworth 
would  have  put  it : 

"The  good  die  first, 
And  they  whose  throats  are  dry  as  summer  dust 
Burn  to  the  socket." 

The  war  has  brought  the  political,  social  and  indus- 
trial affairs  of  the  world  into  an  abnormal  state  of  un- 

301 


302  PAPERS  AND  ADDRESSES 

rest.  In  Russia  the  revolt  against  the  old  order  can- 
not be  dismissed  with  the  formula  that  her  people 
should  work  out  their  own  salvation,  because  its  psy- 
chological effect  has  permeated  far  beyond  Russia  it- 
self. 

The  Bolshevists  proclaim  to  the  world  that  ordered 
liberty,  as  the  rest  of  the  world  understands  it,  is  a 
mere  gesture  or  metaphor ;  that  freedom  of  speech  and 
of  the  press,  the  equal  protection  of  the  laws,  the  right 
to  assemble  and  to  petition  the  government,  the  prohi- 
bition of  unreasonable  searches,  seizures,  and  cruel  and 
unusual  punishments,  and  the  safeguarding  of  life,  lib- 
erty or  property  by  due  process  of  law,  merely  facili- 
tate the  infliction  of  injustice. 

They  would  substitute  the  despotism  of  the  prole- 
tariat over  every  other  class,  the  subversion  of  all 
freedom,  morality  and  religion,  and  they  would  con- 
temptuously reject  patriotism  and  love  of  country  as 
a  moral  force.  But  the  most  amazing  thing  is  that 
they  seek  to  perpetuate  their  rule,  not  by  the  consent 
of  the  governed,  but  by  the  will  of  a  small  minority  sus- 
tained by  force. 

Lenin  himself  has  boasted  that  control  of  180,000,000 
of  people  is  in  the  hands  of  not  more  than  200,000  in- 
dustrial workers  in  the  cities.  This  is  made  possible 
by  giving  the  Red  Army  extraordinary  privileges  in 
the  material  things  of  life,  and  by  vesting  in  them  eight 
times  the  political  power  of  the  industrial  workers  in 
the  city  and  eighty  times  that  of  the  peasants  who 
constitute  90  per  cent,  of  the  population. 

This  rule  of  the  minority  was  accomplished  not  so 
much  by  military  force  as  by  industrial  strikes.  The 
new  possibilities  in  the  use  of  that  weapon  have  no 
doubt  had  a  psychological  relation  to  certain  phases  of 
recent  strikes  in  other  parts  of  the  world. 


STATE  BAR  ASSOCIATION,  1920        303 

In  England  the  coal  strike  and  the  railroad  strike 
struck  at  the  very  life  of  the  British  people,  who  had 
to  unite  in  self -protection  to  avoid  the  terrible  effects 
of  a  fuel  famine  and  of  the  paralysis  of  the  transporta- 
tion system.  The  police  strike  in  London  threatened 
to  overthrow  law  and  order.  The  Boston  police  strike 
was  a  similar  movement,  of  which  Governor  Coolidge 
truly  said:  " There  is  no  right  to  strike  against  the 
public  safety  by  anybody  anywhere  at  any  time. "  The 
coal  strike  here  became  a  matter  of  national  concern, 
not  because  the  employers  were  illegally  threatened  by 
loss,  but  because  the  vital  necessities  of  the  public  com- 
pelled them  to  become  a  party  to  a  controversy  in 
which  they  had  no  other  concern. 

Our  great  business  combinations,  the  interlocking  of 
our  essential  industries,  their  interdependence  and  the 
far-reaching  effect  of  an  interference  with  the  func- 
tioning of  any  of  their  parts,  make  a  great  strike  to-day 
of  far  greater  moment  than  at  any  time  in  our  history. 
Whether  a  check  in  our  industrial  life  result  from  the 
unreasonable,  selfish  or  arbitrary  policy  of  employers, 
or  from  the  ill-considered  or  tyrannous  action  of  the 
employees,  in  either  case  it  tends  to  deprive  the  people 
of  the  right  to  pursue  happiness  in  their  own  way,  and 
our  government  ceases  to  derive  its  "powers  from  the 
consent  of  the  governed,' *  but  from  the  dictation  of  a 
group. 

No  one  now  denies  the  right  of  industrial  workers 
to  unite  to  better  their  condition.  But  if  in  increasing 
their  participation  in  the  profits  and  management  of 
industries  they  do  not  avoid  excessive  and  unreason- 
able resort  to  strikes,  we  shall  come  perilously  near  a 
condition  where  minorities  and  not  majorities  rule. 

Another  subject  engages  the  attention  of  the  public. 

We  are  in  a  maelstrom  of  constitutional  agitation. 


304  PAPERS  AND  ADDRESSES 

If  we  could  personify  our  fundamental  charter  our 
emotions  would  be  repeatedly  aroused  by  its  merciless 
pulling  and  hauling.  No  question  of  vital  national  im- 
portance arises  that  does  not  evoke  divergent  views. 
One  school  of  publicists  insists  upon  the  most  extreme 
remedies  that  can  be  invoked  for  the  cure  of  our  ills. 
Another  stands  aghast  at  the  remedies  proposed  by 
alarmists  as  an  assault  upon  the  most  cherished  prin- 
ciples of  civil  liberty. 

Thus,  perhaps,  the  police  are  a  little  indiscreet  and 
arrest  a  few  fanatical  but  harmless  paraders.  A  sensi- 
ble police  magistrate  discharges  the  prisoners  with  an 
apology,  and  with  good  humor  admonishes  the  police. 
But  straightway  persons  charged  by  Divine  Providence 
with  the  custody  of  the  charter  of  our  liberties  spring 
forth  and  announce  that  the  curtain  has  fallen  on  the 
last  act  of  the  tragedy  of  the  Constitution.  And  even 
one  of  our  great  journals  gives  up  the  game  in  these 
despairing  words : 

"There  is  no  freedom  of  speech  or  of  the  press  left,  ex- 
cept by  consent  of  government.  Police  authority  everywhere 
is  denying  to  small  minorities  whose  doctrines  are  unpopular 
the  right  of  free  speech.  .  .  . 

"Plainly,  the  American  people  are  getting  away  from  first 
principles ;  they  are  forgetting  their  traditions  and  losing  sight 
of  their  ancient  landmarks." 

Without  the  conviction  of  a  single  person,  without 
the  menace  of  a  doubtful  statute,  without  a  decision  of 
the  tribunal  whose  decisions  have  ever  kept  the  prin- 
ciples of  civil  liberty  undefiled,  the  right  of  ' 'freedom 
of  speech  or  of  the  press' y  suddenly  becomes,  to  all  in- 
tents and  purposes,  deleted  from  the  scroll  of  the  Con- 
stitution.   And  yet,  in  the  journals  which  our  busy  life 


STATE  BAR  ASSOCIATION,  1920        305 

permits  us  to  read,  we  daily  wade  through  columns  of 
print  going  to  the  very  verge  not  of  freedom,  but  of 
license.  And  this  free  discussion  will  go  on  unchecked, 
except  as  the  Supreme  Court  recently  said,  that  the 
law  will  "not  protect  a  man  in  falsely  shouting  fire  in 
a  theatre  and  causing  a  panic." 

Now  look  at  the  other  side  of  the  picture. 

Seventy  bills  are  introduced  in  Congress,  inspired  by 
a  determination  to  suppress  by  the  most  violent  per- 
missible means  the  menace  of  Bolshevism.  Acts  class- 
ified as  sedition  are  by  some  of  these  bills  even  declared 
to  be  treason  and  punishable  by  death.  Socialist  as- 
semblymen are  put  to  the  proof  of  their  patriotism 
before  being  permitted  to  represent  their  constituents. 
And  radicals  all  over  the  country  are  herded  in  one 
grand  spectacular  roundup. 

But  no  accused  person  can  suffer  unless  he  not  only 
intends,  but  attempts  by  violence,  to  overthrow  our 
institutions.  None  of  the  seventy  bills  has  been 
passed,  nor  will  any  one  find  himself  in  jail  until  the 
Supreme  Court  says  they  are  constitutional.  The 
herded  Bolshevists  are  entitled  to  writs  of  habeas 
corpus,  whether  they  are  citizens  or  aliens.  And  the 
Assemblymen  may  acquire  such  fame  as  martyrs  as 
they  never  before  dared  to  aspire  to. 

Such  agitations  are  not  a  menace  to  our  institutions. 
They  test  their  value.  Only  by  discussion  of  some 
concrete  question  can  the  interest  of  the  American 
people  as  to  the  meaning  and  application  of  the  Consti- 
tution be  aroused.  By  that  process,  however,  they  can 
always  be  depended  upon  to  understand  the  nature  of 
our  institutions.  We  must  not,  therefore,  despair  if  in 
open  discussion  there  is  exaggeration  and  if  desperate 
remedies  are  suggested.     That  is  inevitable.     But  by 


306  PAPERS  AND  ADDRESSES 

the  ultimate  settlement  of  the  ever-recurring  problems 
of  government  by  constitutional  methods,  our  institu- 
tions constantly  gain  in  stability. 

We  hear  much  in  these  post-war  days  of  American- 
ism. But  mere  emotional  response  to  noble  sentiments 
of  patriotism  will  not  avail  to  protect  the  body  politic 
against  assaults  upon  our  institutions,  unless  they  be 
followed  by  enlightened  constructive  effort.  Insidious 
influence  sometimes  emanates  even  from  pulpits,  col- 
leges and  public  prints.  The  parlor  Bolshevists  add 
a  gloss  of  respectability,  of  culture,  of  religion,  and 
even  of  a  spurious  patriotism,  to  the  efforts  of  both  the 
ignorant  alarmist  and  the  disloyal  agitator.  Too  often 
they  confuse  the  Soviet  Ark  with  the  Mayflower. 

With  such  influences  at  work  the  most  useful  kind 
of  Americanism  that  I  know  is  that  which,  inspired  by 
adherence  to  our  national  traditions,  insists  upon  san- 
ity in  counsel  and  steadiness  in  act.  And  there  is  no 
class  in  the  community  so  well  fitted  by  education,  ex- 
perience and  temperament  as  lawyers  for  the  discharge 
of  that  lofty  function. 


ADDRESS  AT  THE  DINNER 
TO  JUDGE  O'BRIEN 


XV 

ADDRESS  AT  THE  DINNER 
TO  JUDGE  0  'BRIEN  * 

The  committee  which  arranged  this  dinner  has  had 
some  troubles,  and  its  chairman  has  asked  me  to  an- 
nounce that  several  disquieting  things  have  happened 
without  its  fault.  The  purpose  in  giving  this  dinner 
was  to  tender  a  tribute  to  the  Honorable  Morgan  J. 
O'Brien,  and  yet  the  committee  feels  much  aggrieved 
to  find  that  Hamlet  doesn't  figure  on  the  first  page  of 
the  program,  and  the  chairman  has  asked  me  to  an- 
nounce that  this  is  entirely  through  a  printer's  error. 
However,  I  think  that  is  a  matter  which  the  honorable 
gentleman  can  outlive. 

There  is  another  subject  which  causes  us  all  keen 
regret,  and  that  is  the  enforced  absence  of  the  honored 
president  of  this  association,  Judge  Cullen.  He  cer- 
tainly is  the  " grand  old  man"  of  this  organization 
and,  barring  the  question  of  age,  may  be  deemed  to 
be  one  of  the  grand  old  men  of  our  profession.  At 
the  last  moment  however,  he  was  obliged  to  give  up 
being  here  because  a  sickness  which  has  detained 
him  at  home  for  some  days  finally  led  the  doctor  to 
advise  him  that  he  must  seek  another  climate.  The 
sudden  call  upon  me  as  vice  president  of  the  associa- 
tion to  take  Judge  Cullen 's  place  raised  with  me  the 
question  which  has  excited  so  much  attention  lately; 
that  is,  the  question  of  preparedness,  and  I  have  really 
never  had  so  much  apprehension  about  it  as  I  have 

i  Remarks  of  Mr.  Taft,  toast-master,  at  the  Annual  Bar  Dinner 
of  the  New  York  County  Lawyers'  Association,  given  in  honor  of  Hon. 
Morgan  J.  O'Brien,  February  26,   191(i. 

309 


310  PAPERS  AND  ADDRESSES 

to-night.  However,  I  must  do  the  best  I  can.  Mr. 
Strauss,  my  fellow  vice  president,  and  myself  have 
had  something  of  a  stage  play  as  to  which  of  us  would 
preside,  but  his  modesty  has  prevailed. 

I  have  a  diffidence  about  addressing  you  gentlemen. 
And  yet  you  don't  seem  so  very  formidable.  I  have  no 
such  hesitation  about  addressing  the  courts,  so  numer- 
ously represented  here  to-night,  but  that  is  a  matter  of 
habit.  When  it  comes  to  addressing  the  keen  intel- 
lects of  the  bar,  however — well,  I  hesitate.  I  am  re- 
minded of  a  story  that  Lord  Campbell  relates  of  Lord 
Eldon.  He  was  obliged  to  address  a  goldsmiths'  din- 
ner, and  was  in  a  high  state  of  trepidation.  He  said : 
"I  had  just  as  lief  address  the  members  of  Parliament 
or  the  law  lords  in  Parliament  as  I  would  so  many 
cabbage  plants,  but  I  find  a  great  diffidence  about  ad- 
dressing the  goldsmiths."  I  have  the  same  feeling 
to-night. 

I  understand  that  Judge  Cullen,  who,  in  his  way, 
is  a  little  bit  of  a  martinet  on  such  occasions  as  this, 
has  taken  pains  to  write  to  each  of  the  speakers  and 
place  a  limit  of  time  upon  them.  I  don't  know  what 
the  limit  is ;  I  haven 't  asked  any  questions ;  but,  what- 
ever it  is,  I  am  going  to  remove  it.  I  think  a  fair  spirit 
of  reciprocity  to  the  judges  of  the  Appellate  Division, 
which  has  now  so  generously  extended  the  time  for 
arguments  of  counsel,  demands  that  all  limits  on  the 
length  of  the  speeches  to-night,  at  least  of  those  of 
the  judges,  should  be  removed.  So,  as  Shakespeare 
says,  gentlemen,  you  will  for  the  time  being  have  to 
take  your  place  on  the  " windy  side  of  the  law."  But 
I  will  venture  a  story  in  that  connection. 

There  come  to  New  Haven  from  time  to  time  on 
Sundays  representatives  of  rural  churches  to  address 
the  students  in  the  chapel  of  Yale  College.     The  tend- 


DINNER  TO  JUDGE  O'BRIEN  311 

ency  of  the  rural  preachers  to  extend  their  sermons  is 
not  a  thing  which  is  congenial  to  the  students.  On  one 
occasion  one  of  these  preachers  came  to  New  Haven 
who  had  a  little  bit  more  consideration  than  is  usually 
characteristic  of  that  class  of  pulpit  orators,  and  he 
said:  "Mr.  Hadley,  is  there  any  limit  of  time  that  is 
imposed  upon  the  ministers  when  they  address  the 
students  ? ' '  "  Oh,  no,  not  any  limit  at  all, ' '  Mr.  Hadley 
said,  "but  I  think  I  ought  to  say  to  you,  sir,  that  there 
is  a  tradition  that  no  souls  are  ever  saved  after  fifteen 
minutes. ' ' 

Now,  I  hope  that  the  gentlemen  who  are  to  come 
after  me  don't  take  these  remarks  as  personal.  Per- 
haps they  would  say  that  I  am  talking  too  long  myself 
and  that  I  had  better  sit  down.  However,  I  want  to 
say  a  word  about  what  this  and  other  associations  have 
been  doing  this  year.  A  good  many  of  us  in  this  Asso- 
ciation have  been  drawing  reform  constitutions  for  the 
state  and  reform  projects  of  procedure,  and,  like  the 
three  tailors  of  Tooley  Street,  we  have  presented  them 
to  the  world  with  some  circumstance;  and  nothing 
more  has  happened.  But  it  has  all  been  beneficial. 
Subjectively  it  has  done  those  of  us  who  have  done  the 
work  some  good.  It  has  cultivated  our  power  of  legal 
analysis.  It  has  given  us  an  opportunity  of  exercising 
our  originality.  And  originality  and  the  power  of  an- 
alysis are  great  things  in  the  law — of  a  great  deal  more 
significance  oftentimes  than  deadly  precision.  Of  the 
reasons  that  are  given  to  support  the  opposing  conten- 
tions of  counsel,  one  or  the  other  must  of  necessity  be 
wrong,  and  we  half  the  time  give  reasons  that  prove  to 
be  bad.  I  always  believed  in  that  form  of  instruction 
in  the  law  which  gave  credit  for  reasons  whether  right 
or  wrong.  I  remember  there  was  an  old  lawyer  who 
used  to  be  a  professor  in  the  Cincinnati  Law  School 


312  PAPERS  AND  ADDRESSES 

when  I  attended  there.  His  name  was  Judge  Yaple, 
and  he  especially  believed  in  the  value  of  originality  of 
thought.  He  always  gave  credit  to  his  students  for 
it.  I  remember  on  one  occasion  he  asked  a  student 
what  was  the  difference  between  a  conditional  limita- 
tion and  a  contingent  remainder,  and  the  student  an- 
swered, " Damned  little,"  and  he  gave  him  fifty  per 
cent. 

Mr.  Choate  has  characterized  this  Association  as  the 
great  democratic  association  of  the  state.  I  choose  to 
think  that  there  is  no  democracy  or  aristocracy  in  our 
profession  except  the  aristocracy  of  character  and  fidel- 
ity and  public  service.  But  what  Mr.  Choate  meant 
was  that  this  Association  was  more  compre- 
hensive in  its  membership  than  any  other  asso- 
ciation, certainly  than  any  other  active  day-to-day 
association  in  this  country,  and  I  want  to  say  just 
a  word  in  favor  of  such  associations.  They  do  great 
good.  No  individual  among  us  can  attempt  to  ex- 
tend the  sphere  of  his  influence  very  widely  in  a  popu- 
lation like  the  city  of  New  York  of  six  millions  of  in- 
habitants. The  bar  here  now  approaches  twenty  thou- 
sand members.  It  becomes  absolutely  essential  for  the 
preservation  of  the  moral  health  of  our  profession 
that  we  should  associate  ourselves  together  in  order  to 
defend  the  standards  of  correct  conduct  by  which  we 
should  all  be  guided.  Indifference  to  matters  of 
ethical  conduct  and  professional  conduct  is  sure  to 
grow  up  in  a  profession  of  the  size  of  that  in  this  city 
unless  its  individual  members  have  some  consciousness 
that  there  are  those  in  the  profession  watching  over 
them  and  vigilant  to  restrain  them  from  lapsing  into 
practices  which  would  do  the  profession  no  credit.  In 
a  bar  of  two  or  three  hundred  I  conceive  that  such  asso- 
ciations are  little  needed ;  but  in  a  bar  so  numerous  as 


DINNER  TO  JUDGE  O'BRIEN  313 

ours  we  need  associations  of  the  members  of  the  bar  to 
organize  against  the  invasion  of  our  profession  by  im- 
proper practices.  I,  for  one,  would  like  to  join  other 
similar  associations  that  would  include  the  entire  bar 
of  the  city  in  order  that  by  concerted  efforts  we  might 
have  a  substitute  for  that  kind  of  public  opinion  which 
prevails  at  a  smaller  bar  and  which  restrains  members 
within  the  correct  lines  and  holds  them  up  to  the  highest 
standards  of  professional  ethics.  Such  associations  if 
properly  conducted  are  an  effective  means  to  prevent 
the  bar  from  falling  into  disrepute  on  account  of  that 
small  minority  who  do  not  hold  its  traditions  pure. 
Now,  this  Association  has  been  at  the  forefront  in  de- 
veloping a  system  of  professional  ethics.  It  is  a  pretty 
elaborate  system.  The  Committee  on  Professional 
Ethics  has  been  doing  grand  work  in  keeping  out  of  the 
profession  those  who  are  attempting  to  commercialize 
it  and  those  who  are  attempting  to  bring  the  prac- 
tice of  the  law  into  the  hands  of  the  corporations.  I 
wish  to  speak  also  of  the  work  of  the  City  Bar  Associa- 
tion— I  think  the  two  associations  have  supplemented 
each  other  and  have  done  splendid  work,  and  I  am  glad 
to  have  the  opportunity  of  paying  this  tribute  to  them 
both. 


SPEECH  OF  MR.  HENRY  W.  TAFT 


XVI 
SPEECH  OF  MR.  HENRY  W.  TAFT  1 

Mr.  President,  Mr.  Ambassador,  Mr.  Minister,  Ladies 
and  Gentlemen  :  When  your  president  asked  me  to 
say  a  few  words  to-night,  I  had  no  idea  that  I  was  to 
have  the  pleasure  of  attending  a  function  of  such 
splendor  as  this,  nor  did  I  at  all  appreciate  the  strength 
and  dignity  and  importance  of  this  organization.  I 
told  the  president  that  I  would  take  pleasure  in  saying 
a  word  of  greeting  as  I  had  arrived  fresh  from  your 
native  land.  I  wish  I  could  address  you  in  French, 
but  the  only  French  that  I  know  I  learned  in  French 
Canada,  and  while  the  Canadians  say  that  theirs  is  the 
French  of  Moliere  and  that  it  is  the  Parisian  French 
that  has  become  corrupted  in  these  hundreds  of  years, 
yet  I  am  afraid  that  if  I  attempted  to  speak  the  Cana- 
dian French  I  might  incur  the  hostility  of  these  formid- 
able military  guards  that  I  have  seen  standing  here, 
whose  duty  it  is,  no  doubt,  to  protect  among  other 
things,  the  purity  of  the  French  language. 

As  the  Ambassador  has  said,  I  have  come  direct  from 
the  Chicago  convention  and  so  I  might  have  said  some- 
thing about  politics ;  but  the  president  of  your  associa- 
tion was  good  enough  to  send  me  a  copy  of  your  year 
book,  and  I  there  observed,  at  a  page  which  he  had 
considerately  turned  down,  a  by-law  which  was  worded : 
"All  political  discussions  are  excluded."  Further- 
more, perhaps  you  are  not  interested  in  politics. 
We  become  sometimes  preoccupied  with  our  own 
environment  and  mistakenly   think   everybody   is  in- 

i  Delivered  before  the  American  Chamber  of  Commerce  in  Paris,  July 
4,  1912. 

317 


318  PAPERS  AND  ADDRESSES 

terested  in  those  things  that  we  ourselves  are  en- 
grossed with.  In  that  connection  I  might  mention  the 
experience  that  my  wife  had  on  the  steamer  coming 
across  the  ocean,  when  she  sat  beside  a  lady  with  whom 
she  entered  into  casual  conversation.  She  was  an 
American  lady  who  was  on  her  way  to  her  twentieth 
cure  at  Carlsbad,  and  my  wife  said  to  her  among  other 
things  that  we  had  been  to  the  Chicago  convention. 
The  lady  quite  opened  her  eyes  and  asked:  "That  was 
a  convention  of  doctors,  was  it  not?" 

I  had  the  pleasure  of  meeting  in  New  York  the  dele- 
gates who  were  sent  to  the  Champlain  Tricentenary, 
and  amongst  others  my  very  distinguished  friend 
upon  my  left.  I  attended  the  function  in  their  honor, 
and  I  think  our  hospitalities  were  pretty  persistent  and 
they  displayed  unusual  endurance.  As  I  stand  here  I 
am  reminded  of  a  speech — I  think  it  was  Baron  d'Es- 
tournelles  de  Constant  who  made  the  speech,  or  perhaps 
it  was  one  of  the  other  distinguished  gentlemen.  He 
quite  seriously  discussed  the  question  of  the  high  cost 
of  living,  which  subject  has  very  much  interested  our 
country,  as  well,  I  think,  as  all  other  countries  of  the 
world.  He  said:  "If  you  would  send  your  American 
women  to  learn  the  economy  of  the  French  women  you 
would  take  a  step  in  advance."  My  experience  with 
the  French  women  has  not  yet  convinced  me  of  the 
truth  of  his  remark,  but  I  must  say  to  you  that  so  far 
as  I  myself  am  concerned,  my  experience  has  been  with 
the  French  women  who  keep  the  shops  in  the  Rue  de 
la  Paix,  and  I  have  not  found  them  especially  good 
teachers  of  economy. 

Mr.  President,  I  am  a  member  of  the  committee 
which  has  been  appointed  to  secure  for  the  United 
States  the  celebration  of  a  saner  Fourth  of  July.  We 
seek  less  noise  and  more  sentiment,  more  expression  of 


SPEECH  OF  MR.  HENRY  W.  TAFT       319 

patriotism  which  will  recall  to  our  memory  those  great 
men  who  have  given  us  the  priceless  boon  of  liberty 
regulated  by  law.  Such  an  occasion  as  this  I  count  as 
most  useful  in  that  direction,  and  I  hope  that  we  in 
America  may  emulate  the  example  of  the  American 
Chamber  of  Commerce  in  Paris  in  celebrating  this 
great  anniversary  by  recalling  to  mind,  as  the  eminent 
gentlemen  here  present  have  already  so  eloquently 
done,  the  principles  that  those  wise  men  of  one  hundred 
and  thirty  years  ago  embodied  in  that  great  instrument 
of  free  government,  the  Constitution  of  the  United 
States,  and  the  sentiments  which  they  expressed  in 
that  eloquent  dissertation  upon  the  rights  of  man,  the 
Declaration  of  Independence. 

This  Chamber  of  Commerce  can  perform  a  most  use- 
ful function  in  continuing  the  present  friendly  rela- 
tions between  France  and  America.  I  cannot,  at  this 
late  hour,  go  over  the  various  possible  fields  of  its  use- 
fulness ;  but,  to  mention  one,  in  the  important  question 
of  the  tariff,  your  body  can  do  much  to  eliminate  the 
misunderstandings  that  constantly  arise  in  relation  to 
the  trade  between  the  two  countries.  We  are  surely 
approaching  an  era  in  our  country  where  the  schedules 
of  our  tariff  will  be  based  upon  the  strictest  investiga- 
tion of  the  facts,  and  that  is  a  most  difficult  thing  under 
present  conditions.  We  have,  however,  established  a 
Tariff  Commission,  whose  duty  it  is  to  investigate  cost 
of  production  and  cost  of  manufacture.  A  body  like 
yours  can  be  most  useful  in  aiding  such  a  commission 
in  ascertaining  facts,  and  if  the  facts  be  ascertained 
beyond  dispute,  our  Congress  cannot  resist  the  force 
of  public  opinion  in  considering  them  in  framing  the 
schedules  of  the  tariff  law.  If  that  be  done,  and  if 
the  principle  of  our  protection  be  preserved  upon  such 
a  basis,  nobody  can  complain.     Then  another  aid  to 


320  PAPERS  AND  ADDRESSES 

international  commerce  or  trade  is  the  representation 
to  the  French  public  of  the  facts  in  relation  to  Amer- 
ican securities.  I  am  glad  to  observe  that  in  recent 
years  there  has  been  an  effort  to  introduce  on  the 
French  market  our  American  corporate  securities,  and 
this  body  can  be  most  useful  in  eliminating  misunder- 
standings that  may  easily  arise  in  relation  to  them. 

I  cannot  close  without  one  word  on  another  subject 
of  the  highest  importance,  and  in  relation  to  which  no 
man  in  the  world  has  rendered  such  valuable  services 
as  my  distinguished  neighbor,  Baron  d'Estournelles  de 
Constant.  That  is  the  subject  of  arbitration.  At  this 
moment,  perhaps,  in  the  stress  of  political  campaign, 
the  subject  will  be  lost  sight  of.  It  has  suffered  some 
vicissitudes  in  the  Senate  of  the  United  States,  but  I 
feel  confident  that  its  trials  are  but  temporary,  and 
that  with  the  aid  and  the  cooperation  of  France  and 
other  nations  we  can,  for  peace 's  sake,  ultimately  have, 
with  all  of  the  great  nations,  arbitration  treaties 
which  will  reduce  the  risks  of  war  to  a  minimum. 
In  that  connection  I  think  we  are  to  be  congratu- 
lated that  our  countrymen  have  now  in  charge  of  the 
diplomatic  negotiations  such  able  representatives  as 
Governor  Herrick  and  Mr.  Jusserand.  Governor  Her- 
rick  I  have  known  for  many  years.  I  am  sure  you 
will  come  to  like  him  as  much  as  we  all  have  come  to 
like  him  in  our  country.  France  ought  to  feel  compli- 
mented that  she  has  succeeded  in  getting  Governor 
Herrick.  I  betray  no  state  secret,  because  it  is  known 
in  our  country,  that  the  suggestion  has  been  made 
that  he  should  represent  our  government  at  the  court 
of  some  of  the  other  great  nations  of  the  Conti- 
nent, but  that  he  has  always  withstood  the  temptation, 
and  until  now  America  has  not  been  able  to  avail  of  his 
services.     I  know  he  feels  in  sympathy  with  the  spirit 


SPEECH  OF  MR.  HENRY  W.  TAFT      321 

of  the  French  people,  and  I  feel  confident  that  he  will 
soon  acquire  their  language  and  will  no  longer  modestly 
attribute  the  success  of  his  public  addresses  to  the  ad- 
mirable eloquence,  as  an  interpreter,  of  Baron 
d'Estournelles  de  Constant.  Mr.  Jusserand  I  know 
very  intimately.  We  are  all  very  devoted  to  him 
in  America.  He  knows  our  foibles  and  he  does  not 
hesitate  in  his  most  good-natured  way  and  without 
bitterness  to  call  our  attention  to  them.  He  is  per- 
sona grata  of  the  most  pronounced  type  to  our  gov- 
ernment and  to  our  people.  He  has  done  much  to  pro- 
mote arbitration  treaties,  and  I  feel  sure  will  do  more. 
Among  other  things,  and  I  say  this  after  I  have  lis- 
tened to  the  eloquent  words  of  my  friend  the  Baron, 
few  American  orators  can  compare  with  Mr.  Jusserand 
in  beauty  of  diction  and  in  eloquence  when  he  speaks  in 
English.  With  two  such  representatives  as  these,  it 
would  seem  a  fair  promise  that  the  relations  between 
these  two  countries  should  become  warmer  and  warmer. 
I  thank  you,  ladies  and  gentlemen,  for  your  attention. 


JOHN  LAMBERT  CADWALADEB 

An  Appreciation 


XVII 
JOHN  LAMBERT  CADWALADER 

An  Appreciation  * 

John  Lambert  Cadwalader  had  none  of  that  kind  of 
reputation  which  sometimes  vaguely  emerges  from  the 
glamour  of  public  life ;  for  he  had  held  but  one  office 
and  that  for  only  a  brief  period  many  years  ago.  But 
his  services  to  institutions  for  the  dissemination  among 
the  people  of  knowledge  and  culture,  his  leadership  in 
his  profession,  the  influence  of  his  interesting  person- 
ality and  high  character,  and  the  friendship  and  respect 
which  he  commanded  among  the  foremost  men  of  his 
time,  justly  entitle  him  to  be  regarded  as  an  American 
citizen  of  high  distinction. 

Mr.  Cadwalader  was  born  at  Trenton  on  November 
17, 1836,  and  died  in  the  city  of  New  York  on  March  11, 
1914,  in  the  seventy-eighth  year  of  his  age.  His  an- 
cestors had  from  Colonial  days  been  persons  of  conse- 
quence in  Pennsylvania  and  New  Jersey.  He  grad- 
uated at  Princeton  College  in  1856;  and  he  was  for 
many  years  one  of  its  most  active  trustees.  He  at- 
tended the  Harvard  Law  School ;  and  after  graduating 
there  he  practiced  law  in  New  York  City  until  he  be- 
came, in  1874,  Assistant  Secretary  of  State  of  the 
United  States,  in  the  administration  of  General  Grant, 
After  leaving  the  State  Department  in  1876  he  made 
a  journey  of  observation  around  the  world,  during 
which  he  visited  many  interesting  places  in  the  Orient 
not  then  readily  accessible.     Upon  his  return  to  New 

i  Paper  read  at  the  opening  of  the  Trenton  Public  Library,  April  6, 
1915. 

325 


326  PAPERS  AND  ADDRESSES 

York  he  resumed  the  practice  of  law.  In  1869  he  had 
been  one  of  the  small  number  of  lawyers  who  united 
in  founding  the  Association  of  the  Bar  of  the  City  of 
New  York,  which  grew  out  of  a  movement  to  elevate 
the  judiciary  of  the  state  which  had  fallen  into  dis- 
repute during  the  Tweed  regime.  Many  years  after- 
ward he  became  the  President  of  the  Association — an 
honor  generally  regarded  as  denoting  leadership  at 
the  Bar  of  New  York. 

That  Mr.  Cadwalader  gained  high  repute  as  a  lawyer 
was  not  due  to  exceptional  erudition  nor  yet  to  un- 
common powers  of  advocacy.  It  was  still  less  due  to 
his  willingness  to  yield  to  the  tendency  of  modern  con- 
ditions which  too  often  obscure  high  professional  ideals 
by  expecting  from  a  lawyer  that  he  shall  also  be  a  man 
of  business  or  even  have  some  share  in  his  client's  en- 
terprises. But  Mr.  Cadwalader  was  one  of  the  old  type 
of  lawyers  who  assisted  their  clients  to  a  wise  solu- 
tion of  their  difficulties  or,  if  a  contest  was  inevitable, 
delighted  to  "strive  mightily"  for  the  protection  of 
their  rights.  His  ability  to  summarize  and  state  to  a 
court  in  terse  and  incisive  phrase  the  substance  of  a 
controversy  was  surpassed  by  few,  if  any,  lawyers  of 
his  time,  while  his  instinctive  sense  of  justice  gave  him 
a  grasp  of  principle  which  made  him  less  prone  than 
most  men  to  a  reliance  upon  a  "codeless  myriad  of 
precedents."  No  lawyer  could  more  readily  (I  had 
almost  said  gayly)  divest  himself  of  the  encumbrance 
of  technicalities  and  penetrate  to  the  heart  of  a  situa- 
tion. While  he  was  practical,  sympathetic  and  always 
helpful,  he  never  resorted  to  indirection  or  other  tor- 
tuous expedients.  He  was  especially  effective  where 
seemingly  irreconcilable  differences  were  to  be  com- 
posed. In  such  matters  he  long  occupied  a  unique  posi- 
tion as  an  adviser;  and  with  years  and  experience  he 


JOHN  LAMBERT  CADWALADER   327 

grew  to  be  one  of  those  rare  individuals  whom  a  com- 
munity invests  with  the  character  of  a  sage. 

But  it  is  his  unselfish  and  fruitful  services  to  the 
public  that  compel  us  to  pay  signal  honor  to  his  mem- 
ory. His  reputation  was  closely  linked  with  the  New 
York  Public  Library,  and  at  the  time  of  his  death  he 
was  President  of  its  Board  of  Trustees.  More,  per- 
haps, than  to  any  other  man  was  it  due  to  him  that  that 
institution  was  established  on  a  foundation  broad  and 
permanent.  This  was  the  culmination  of  many  years 
of  useful  service  to  the  public  libraries  of  the  city. 
And  those  who  seek  in  heredity  the  springs  of  human 
action  will  find  peculiar  interest  in  the  fact  that  Mr. 
Cadwalader's  great-grandfather,  Dr.  Thomas  Cadwal- 
ader,  for  many  years  a  Colonial  Councillor  of  Pennsyl- 
vania, was  one  of  the  first  board  of  directors  of  The 
Library  Company  of  Philadelphia,  founded  in  1731 
largely  through  the  efforts  of  Benjamin  Franklin,  who 
describes  it  in  his  autobiography  as  the  "mother  of  all 
North  American  subscription  libraries,"  and  in  the 
further  fact — of  especial  interest  on  this  occasion — 
that  this  same  Doctor  Cadwalader,  having  been  in  1746 
the  first  Burgess  of  Trenton,  himself  established  in 
that  place,  prior  to  1750,  a  public  library,  some  of  the 
volumes  of  which  are  still  extant.  While  these  early 
essays  in  librarv  work  were  for  many  years  necessarilv 
on  a  limited  scale,  they  contained  the  germ  of  an  idea, 
long  since  generally  accepted,  that  it  is  necessary  to 
afford  to  a  self-governing  people  opportunities  for  en- 
lightenment, if  their  institutions  are  long  to  endure. 
And  it  is  of  the  greatest  interest  to  contrast  the  pioneer 
efforts  of  Franklin  and  his  coadjutors  in  1731,  with 
the  foundation,  nearly  two  centuries  later,  of  the  mag- 
nificent institution  in  New  York  which,  in  the  oppor- 
tunities extended  to  the  public  for  learning  and  re- 


328  PAPERS  AND  ADDRESSES 

search,  and  in  the  convenient  access  to  good  literature 
afforded  by  the  circulating  department,  promises  soon 
to  surpass  any  similar  institution  in  the  world. 

Mr.  Cadwalader  had  been  a  trustee  of  the  Astor 
Library,  and  early  saw  the  importance  of  finding  some 
means  of  availing  of  a  large  bequest  of  Samuel  J.  Til- 
den,  so  that  it  could  be  used  in  bringing  together 
the  Lenox  Library,  the  Astor  Library  and  a  large 
number  of  smaller  libraries  in  one  vast  institution. 
Many  legal  difficulties  had  to  be  removed  by  legisla- 
tion, which  was  largely  devised  by  him.  When  that 
was  obtained  it  still  remained  to  weld  together  the 
existing  libraries,  many  of  which  were  loath  to  surren- 
der their  autonomy  and  independence.  Due  largely, 
however,  to  the  constructive  genius  of  Mr.  Cadwalader 
and  to  his  indomitable  persistence,  tactful  wisdom  and 
practical  experience,  a  plan  was  carried  through  by 
which  there  was  established  upon  an  enduring  founda- 
tion one  of  the  greatest  consultation  and  circulating 
libraries  of  modern  times.  The  difficulties  in  reaching 
this  result  seemed  at  the  outset  insurmountable;  and 
the  solution  of  the  problem,  as  the  then  President  of 
the  United  States  said  at  the  public  opening  of  the 
library  building,  "  required  genius  and  statesman- 
ship. ' ' 

The  rare  aptitude  of  Mr.  Cadwalader  for  work  of  this 
character  led  to  his  services  being  much  sought  for  in 
connection  with  other  institutions  of  a  public,  though 
not  of  a  political  or  governmental,  character.  At  the 
time  of  his  death  he  was  a  trustee  of  the  Metropolitan 
Museum  of  Art,  the  American  Museum  of  Natural  His- 
tory and  the  New  York  Zoological  Society,  all  in  the 
city  of  New  York;  while  he  was  closely  connected  as 
trustee  with  the  organization  and  management  of  the 
Carnegie  Institution  of  Washington,  and  the  Carnegie 


JOHN  LAMBERT  CADWALADER        329 

Endowment  for  International  Peace.  The  duties  of 
these  trusteeships  were  never  performed  in  a  perfunc- 
tory manner ;  for  he  devoted  much  of  his  time  to  them, 
being  always  one  of  that  minority  upon  whom  the 
burden  of  such  work  usually  falls  and  on  whose  en- 
thusiasm successful  results  always  depend.  Of  frail 
physique,  the  burden  was  heavy,  but  his  was  a  spirit 
which  would  not  suffer,  to  the  day  of  his  death,  even  a 
partial  retirement  from  such  activities  as  these. 

Three  universities,  Pennsylvania,  Princeton  and 
Harvard,  conferred  upon  Mr.  Cadwalader  the  degree 
of  LL.D.  He  was  justly  proud  of  this  distinction ;  for 
while  his  achievements  were  of  undoubted  merit  they 
were  not  of  the  kind  which  usually  evoke  academic 
honors  from  so  many  of  our  great  universities. 

Mr.  Cadwalader  was  the  intimate  friend  and  con- 
stant companion  of  many  of  the  most  eminent  men  in 
the  councils  of  the  nation  and  in  the  world  of  science 
and  art.  Such  Americans  as  his  brother-in-law  Dr. 
Weir  Mitchell,  Colonel  Higginson,  Frank  Millet,  Dr. 
Billings,  J.  Pierpont  Morgan,  Senator  Root,  James  C. 
Carter,  Dr.  McBurney,  Whitelaw  Reid  and  Joseph  H. 
Choate  were  some  of  those  numbered  among  his  com- 
panions; while  at  his  hospitable  home  in  the  Scotch 
Highlands  he  gathered  Englishmen  distinguished  in 
statesmanship,  art  and  learning.  Among  these  he  was 
esteemed  for  his  high  character,  his  brilliant  wit,  the 
constancy  of  his  friendship,  his  refined  but  cordial  hos- 
pitality and  his  wise  counsels.  He  had  a  genius  for 
friendship,  and  was  a  believer  in  the  saying  that  "life 
is  to  be  fortified  by  many  friendships."  He  had  great 
vivacity  in  conversation ;  and  his  pointed  comment  and 
witty  repartee  constantly  enlivened  the  circle  of  his 
friends.  This  is  an  aspect  of  his  personality  which 
only  those  who  enjoyed  his  intimacy  can  well  appre- 


330  PAPERS  AND  ADDRESSES 

ciate;  for  the  play  of  his  wit  was  so  spontaneous  and 
its  point  so  dependent  on  its  pertinency  to  a  quickly 
passing  situation,  that  an  attempt  to  reproduce  in- 
stances would  do  him  scant  justice ;  and  yet  this  quality 
played  a  large  part  in  making  him  a  charming  compan- 
ion. His  devotion  to  the  rod  and  the  gun  must  receive 
a  word,  since  salmon  fishing,  grouse  shooting  and  other 
such  diversions  he  truly  loved ;  and  he  had  difficulty  in 
seeing  how  there  was  any  salvation  for  a  man  whose 
soul  was  dead  to  the  fascination  of  such  sports. 

The  way  in  which  Mr.  Cadwalader  expressed  his 
intention  to  make  a  gift  to  this  library  cannot  but 
evoke  a  smile  from  those  who  knew  him  well,  for  it 
recalls  the  amusingly  ingenious  ways  in  which  he  con- 
cealed his  benefactions  or  disparaged  his  acts  of  per- 
sonal kindness.  He  desired,  as  he  wrote  to  your  presi- 
dent, that  the  library  should  be  made  "as  efficient  as 
any  in  the  state,"  that  he  should  have  "no  recognition 
in  any  way,"  because  he  had  "no  motive  other  than 
to  benefit  the  subject."  And  he  would  have  depre- 
cated, probably  forbidden,  such  a  demonstration  as 
this ;  for  in  such  things  he  was  diffident  to  the  point  of 
shyness,  and  more  than  content  with  a  sense  of  duty 
well  performed. 

It  was  his  devotion  to  the  place  of  his  birth,  mingled 
with  a  just  pride  in  his  New  Jersey  ancestors,  that 
turned  his  mind  to  the  historical  city  of  Trenton  and 
led  to  the  benefaction  which  made  possible  the  com- 
pletion of  this  beautiful  and  commodious  library  build- 
ing. In  the  Revolutionary  War,  in  the  establishment 
of  our  national  government  and  in  the  public  affairs  of 
our  national  government  and  in  the  public  affairs  of 
New  Jersey  and  Pennsylvania,  the  Cadwalader  family 
had  borne  a  conspicuous  part.  He  was  accustomed  to 
say  of  his  forbears  that  they  had  done  "something  of 


JOHN  LAMBERT  CADWALADER    331 

account, ' '  usually  adding,  as  if  to  disavow  an  intention 
to  boast,  a  humorous  comment  on  some  foible  which 
family  tradition  had  preserved.  But  in  truth  his  an- 
cestors had  enjoyed  distinction  in  the  affairs  of  state 
and  nation  and  were  of  those  entitled  to  stand  high  in 
the  ranks  of  that  kind  of  aristocracy  which  exacts  high 
ideals,  self-abnegation  and  patriotic,  faithful  and  effi- 
cient service.  To  such  ancestors  as  these  a  lofty  monu- 
ment might  have  fitly  been  erected,  but  it  would  have 
been  alien  to  his  nature  for  him  to  preserve  their  mem- 
ory in  that  way ;  for  his  whole  life  showed  his  belief  that 
"monuments  themselves  memorials  need."  And  no 
memorial  could  be  more  true  to  the  character  of  John 
L.  Cadwalader  than  that  which  associates  him  and  his 
family  name  with  the  idea  of  service  to  the  people  of 
this  city  by  affording  to  them  an  adequate  opportunity 
for  the  pursuit  of  knowledge. 


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